Source document: https://docs-lawep.s3.us-east-2.amazonaws.com/1698937953736.pdf (South Africa)
REPUBLIC OF SOUTH AFRICA DOMESTIC VIOLENCE AMENDMENT BILL (As agreed to by the Portfolio Committee on Justice and Correctional Services (National Assembly)) (The English text is the offcial text of the Bill) (MINISTER OF JUSTICE AND CORRECTIONAL SERVICES) [B 20D—2020] No.

of copies printed .........................................350 ISBN 978-1-4850-0742-5 GENERAL EXPLANATORY NOTE: 2 [ ] Words in bold type in square brackets indicate omissions from existing enactments.
Words underlined with a solid line indicate insertions in existing enactments.

BILL To amend the Domestic Violence Act, 1998 so as to— amend and insert certain deﬁnitions; further provide for the manner in which acts of domestic violence and matters related thereto, must be dealt with; further regulate protection orders in response to acts of domestic violence; amend provisions of certain laws; and provide for matters connected therewith.
PARLIAMENT of the Republic of South Africa enacts as follows:— Insertion of Arrangement of Sections in Act 116 of 1998 1.

The following Arrangement of Sections is hereby inserted in the Domestic Violence Act, 1998 (Act No.

116 of 1998) (hereafter referred to as the ‘‘principal Act’’): 5 ‘‘ARRANGEMENT OF SECTIONS Sections 1.

Deﬁnitions and interpretation 2.

Duty to assist and inform complainant of rights 2A.

Obligations of functionaries relating to domestic violence 2B.
Obligation to report domestic violence and to provide information 3.

Arrest by peace officer without warrant and assistance to complainant 3A.

Entering of private dwelling for purposes of obtaining evidence 4.

Application for protection order 4A.

Domestic violence safety monitoring notice 5.

Consideration of application and issuing of interim protection order 5A.

Attendance of witnesses 5B.

Electronic communications service provider to furnish particulars to court 5C.
Existing and reciprocal orders or applications 6.

6A.

Integrated electronic repository for domestic violence protection orders 7.

Court’s powers in respect of protection order Issuing of ﬁnal protection order 10 15 20 3 Seizure of weapons 8.

Warrant of arrest upon issuing of protection order 9.

10.

Variation or setting aside of protection order 11.

Attendance of proceedings and prohibition of publication of certain information 12.

Jurisdiction 13.

Service of documents 14.

Legal representation 15.


Orders as to costs of service and directions 16.

Appeal and review 17.

Offences 18.

Application of Act by prosecuting authority and members of South African Police 5 10 Service 18A.Directives for clerks of the court 18B.Directives for Departments of Health, Social Development, Basic Education, Higher Education and Training and Communications and Digital Technologies 15 19.
Regulations 19A.Period within which directives and regulations must be submitted to Parliament 20.

Amendment of laws 21.

Repeal of laws and savings 22.

Short title and commencement’’.

Substitution of section 1 of Act 116 of 1998, as amended by section 10 of Act 31 of 2008 2.

The following section is hereby substituted for section 1 of the principal Act: ‘‘Deﬁnitions and interpretation 1.
(1) In this Act, unless the context indicates otherwise— [‘arm’ means any arm as deﬁned in section 1 (1) or any armament as deﬁned in section 32 (1) of the Arms and Ammunition Act, 1969 (Act 75 of 1969);] ‘capture’ means to store documents in the— (a) manner; and (b) format, in the integrated electronic repository, as may be provided for in the directives contemplated in section 6A(3)(i); ‘care giver’ means any person older than 18 years who, in relation to a child, a person with a disability or an older person, takes responsibility for meeting the daily needs of, or is in substantial contact with, such person; ‘child’ means a person under the age of 18 years; ‘clerk of the court’ means a clerk of the court appointed in terms of section 13 of the Magistrates’ Courts Act, 1944 (Act No.
32 of 1944), and includes an assistant clerk of the court so appointed; ‘close relationship’ means a relationship between the complainant and any other person, which the court, with regard to the following criteria: (a) The degree of trust between the persons; (b) the level of each person’s dependence on, and commitment to, the other person; length of time the relationship has existed; frequency of contact between the persons; or the degree of intimacy between the persons, (c) (d) (e) may consider as a close relationship of a person with the complainant; ‘coercive behaviour’ means to compel or force a complainant to abstain from doing anything that they have a lawful right to do, or to do anything that they have a lawful right to abstain from doing; 20 25 30 35 40 45 50 4 ‘communication’ referred to in the deﬁnition of ‘harassment’ means anything that is used to impart information or ideas, and includes a letter, text, photo, video recording, audio recordings, but excludes an electronic communication; ‘complainant’ means any person who is or has been in a domestic relationship with a respondent and who is or has been subjected or allegedly subjected to an act of domestic violence, including any child in the care of the complainant; ‘controlling behaviour’ means behaviour towards a complainant that has the effect of making the complainant dependent on, or subservient to, the respondent and includes— (a) (b) exploiting their resources or capacities for personal gain; (c) depriving them of the means needed for independence, resistance or isolating them from sources of support; escape; or regulating their everyday behaviour; (d) ‘court’ means any magistrate’s court for a district contemplated in the Magistrates’ Courts Act, 1944[ (Act 32 of 1944)]; ‘damage to property’ means— the wilful damaging or destruction of property; or threats to damage or destroy property, (a) (b) belonging to, or which is in the possession or under the control of, the complainant, or in which the complainant has a vested interest;
 [‘dangerous weapon’ means any weapon as deﬁned in section 1 of the Dangerous Weapons Act, 1968 (Act 71 of 1968);] ‘disclose by means of an electronic communications service’ means to— (a) (b) (c) send an electronic communication to a person who is the intended recipient of the electronic communication or any other person; store an electronic communication on an electronic communica- tions network, where the electronic communication can be viewed, copied or downloaded; or send or otherwise make available to a person, a link to an electronic communication that has been stored on an electronic communica- tions network, where the electronic communication can be viewed, copied or downloaded; ‘Director-General’ means the Director-General: Justice and Consti- tutional Development; ‘disability’ means a moderate to severe limitation of a person’s ability to function or perform daily activities as a result of a physical, sensory, communication, intellectual, mental or psychological impairment; ‘domestic relationship’ means a relationship between a complainant and a respondent in any of the following ways: (a) (b) (c) (d) (e) (f) including marriage they are or were married to each other, according to any law, custom or religion; they (whether they are of the same or of the opposite sex) live or lived together in a relationship in the nature of marriage, although they are not, or were not, married to each other, or are not able to be married to each other; they are the parents of a child or are persons who have or had parental responsibility for that child (whether or not at the same time); they are family members related by consanguinity, affinity or adoption; they are or were in an engagement, dating or customary relation- ship, including an actual or perceived romantic, intimate or sexual relationship of any duration; or they are persons in a close relationship that share or [recently] shared the same residence; ‘domestic violence’ means— (a) physical abuse; (b) (c) sexual
 abuse; emotional, verbal [and] or psychological abuse; 5 [stalking] spiritual abuse; (d) economic abuse; (e) intimidation; (f) harassment; (fA) sexual harassment; (fB) related person abuse; (g) (h) damage to property; (hA) elder abuse; (hB) coercive behaviour; (hC) controlling behaviour; (hD) to expose a child to domestic violence; (i) entry into the complainant’s— (i) permanent or temporary residence without their consent, where the parties do not share the same residence; or (ii) workplace or place of study, without their consent, where the parties do not share the same workplace or place of study; or any other [controlling or abusive] behaviour of an intimidating, threatening, abusive, degrading, offensive or humiliating nature towards a complainant, (j) where such conduct harms, or [may cause imminent harm to, the safety, health or wellbeing of ]inspires the reasonable belief that harm may be caused to the complainant; ‘economic abuse’ includes— (a) (b) (c) (d) the [unreasonable] deprivation of economic or ﬁnancial resources to which a complainant is entitled under law or which the complainant requires out of necessity, including education ex- penses, household necessities for the complainant, and mortgage bond repayments or payment of rent in respect of the shared residence or accommodation; the [unreasonable] disposal of household effects or other property in which the complainant has an interest without the complainant’s permission; the use of ﬁnancial resources of a complainant, without complainant’s permission; or the coercing of the complainant to— the relinquish control over assets or income; or (i) (ii) sign a legal document that would enable the complainant’s ﬁnances to be managed by another person; ‘educator’ means any person, including a person who is appointed to exclusively perform extracurricular duties, who teaches, educates or trains other persons or who provides professional educational services, including
 professional therapy and education psychological services, at all public and independent schools as deﬁned in the South African Schools Act, 1996 (Act No.
84 of 1996), all public and private colleges and all public and private further education and training institutions established, declared or registered in terms of the Further Education and Training Colleges Act, 2006 (Act No.

16 of 2006), and all public and private higher education institutions deﬁned in the Higher Education Act, 1997 (Act No.

101 of 1997); ‘elder abuse’ means abuse of an older person as contemplated in section 30(2) of the Older Persons Act, 2006 (Act No.
13 of 2006), occurring within a domestic relationship; ‘electronic communication’ means electronic representations of information in any form and includes without limitation voice, sound, data, text, video, animation, visual images, moving images and pictures that are real, simulated or manipulated, or a combination or part thereof, that are disclosed by means of an electronic communications service; ‘electronic communications identity number’ means a technical identiﬁcation label which represents the origin or destination of electronic communication; ‘electronic communications network’ means an ‘‘electronic com- the Electronic munications network’’ as deﬁned in section 1 of 6 Communications Act, 2005 (Act No.
36 of 2005), and includes a computer system; ‘electronic communications service’ means any service which consists wholly or mainly of the conveyance by any means of electronic communication over an electronic communication network, but excludes the Electronic broadcasting services, as deﬁned in section 1 of Communications Act, 2005; ‘electronic communications service provider’ means an entity or a person who is licensed or exempted from being licensed in terms of Chapter 3 of the Electronic Communications Act, 2005, to provide an electronic communications service; ‘emergency monetary relief’ means— (a) compensation for monetary losses suffered by a complainant before or at the time of the issue of a protection order as a result of the domestic violence, including— loss of earnings; [(a)](i) [(b)](ii) medical, optical, [and] dental and related expenses; [(c)](iii) relocation and accommodation expenses; [or] [(d)](iv) expenses for acquiring household necessities; education expenses; transportation costs; or (v) (vi) (vii) expenses in respect of psychosocial services and counselling; and (b) maintenance of any child, person with a disability or older person in the care of the complainant, to whom the respondent has a duty of care, pending ﬁnalisation of maintenance proceedings in terms of the Maintenance Act, 1998 (Act No.
99 of 1998); ‘emotional, verbal [and] or psychological abuse’ means [a pattern intimidating or that causes mental or towards a complainant threatening, offensive, of] degrading, manipulating, humiliating conduct psychological harm to a complainant, including— (a) (b) (c) [repeated] insults, ridicule or name calling; [repeated] threats to cause emotional pain; [or] the [repeated] exhibition of obsessive possessiveness or jealousy, which [is such as to constitute] constitutes a serious invasion of the complainant’s privacy, liberty, integrity or security; the wilful damaging or destruction of any property in close vicinity of a complainant; to harm or threaten to harm a household pet or other animal, whose welfare affects a complainant’s well-being; to disclose or threaten to disclose a complainant’s sexual orientation or other private information concerning a complainant, to others without the complainant’s consent; to threaten the complainant with the death or injury of another person or damage of another person’s property; or threats to commit suicide or self-harm; (d) (e) (f) (g) (h) ‘expose a child to domestic violence’ means to intentionally cause a child to— (a) (b) experience the effects of domestic violence; see or hear domestic violence; or ‘functionary’ means— (a) a medical practitioner, health care personnel, a social worker, an official in the employ of a public health establishment, an educator or a care giver; and (b) any other person designated in terms of section 2A(1); ‘harassment’ means [engaging in a pattern of conduct that induces the fear of harm to a complainant including]— (a) [repeatedly] the unreasonable— (i) (ii) following, watching, stalking, pursuing or accosting of the complainant or a related person; or loitering outside of or near the building or place where the complainant or a related person resides, works, carries on business, studies or happens to be, (b) (c) (d) (e) (f) (g) (h) (i) 7 which inspires the belief in the complainant that they or a
 related person may be harmed or their property may be damaged; [repeatedly making telephone calls or inducing another person to make telephone calls to the complainant, whether or not conversation ensues] to repeatedly contact the complainant by means of an electronic communications service, irrespective whether or not— (i) a conversation ensues; or (ii) any information is conveyed to the complainant; letters, telegrams,] of packages, [repeatedly] the repeated sending[,] or delivering [or causing the delivery of [facsimiles, electronic mail] communications or other objects to the complain- ant, or leaving them where they may be found by, given to, or brought to the attention of, the complainant; the unauthorised access to a complainant’s communication or electronic communication; the monitoring or tracking of the complainant’s movements, activities or interpersonal associations without the complainant’s consent, including, for example, by using technology; to enter any part of the joint residence that is exclusively used by the complainant or other property of the complainant, without the complainant’s permission; to unreasonably interfere with any property that is exclusively used by or in the possession of the complainant; to disclose an electronic communication to the complainant, or cause the complainant to receive a communication, which— is abusive, degrading, offensive or humiliating; (i) (ii) violates or offends the sexual integrity or dignity of a (iii) complainant; or inspires the belief in the complainant that they or a related person may be harmed or their property may be damaged; or to disclose an electronic communication, or to make a communica- tion available, to another person concerning a complainant, which— (i) contains information of a private nature; (ii) violates or offends the sexual integrity or dignity of a (iii) (iv) complainant; is abusive, degrading, offensive or humiliating; or inspires the belief in the complainant that they or a related
 person may be harmed or their property may be damaged; ‘health care personnel’ means health care personnel as deﬁned in section 1 of the National Health Act, 2003 (Act No.
61 of 2003), and who belongs to any category or class of health care personnel designated, as a functionary in terms of a directive contemplated in section 18B; ‘integrated electronic repository’ means the integrated electronic repository for domestic violence protection orders, established in terms of section 6A; ‘intimidation’ means [uttering or conveying a threat to, or causing a complainant to receive a threat, which induces fear]— (a) physical violence, or damage to property belonging, to a complain- 50 (b) (c) ant or any other person; threats of physical violence, or damage to property belonging, to a complainant or any other person; to deprive the complainant or any other person of their liberty or threatening to do so; or (d) conveying a threat, or causing a complainant to receive a threat, which induces fear of physical violence, or damage to property belonging to a complainant or any other person through electronic communication, where such conduct is intended to compel a complainant to abstain from doing anything that they have a lawful right to do, or to do anything that they have a lawful right to abstain from doing; 55 60 8 ‘medical practitioner’ means a person registered as a medical practitioner in terms of the Health Professions Act, 1974 (Act No.
56 of 1974); ‘member of the South African Police Service’ means any member as deﬁned in section 1 of the South African Police Service Act, 1995 (Act No.

68 of 1995); ‘Minister’ means the Cabinet member responsible for the administra- tion of justice; ‘official in the employ of a public health establishment’ means a person who— (a) is in the employ of a public health establishment as deﬁned in section 1 of the National Health Act, 2003 (Act No.
61 of 2003); and (b) belongs to any category or class of persons designated by the Director-General: Health in terms of a directive contemplated in section 18B, as a functionary; ‘peace officer’ means a peace officer as deﬁned in section 1 of the Criminal Procedure Act, 1977 (Act No.
51 of 1977); ‘physical abuse’ [means any act or threatened act of]includes— (a) physical violence or threats of physical violence towards a (b) (c) complainant; to deprive the complainant of their liberty or threatening to do so; to administer, attempt to administer or threaten to administer— (i) any drug as deﬁned in section 1(1) of the Drugs and Drug Trafficking Act, 1992 (Act No.
140 of 1992); (ii) any Scheduled substance as deﬁned in section 1(1) of the Medicines and Related Substances Act, 1965 (Act No.
101 of 1965), that affects or may affect a complainant’s judgement or decision-making abilities or is harmful to the health or wellbeing of the complainant; or (ii) any chemical or other substance that is harmful to the health or wellbeing of the complainant, to a complainant without the complainant’s consent; or (d) withholding or threatening to withhold a complainant’s medication; ‘prescribed’ means prescribed in terms of a regulation made under 35 section 19; ‘protection order’ means an order issued in terms of section 5 or 6 but, in section 6, excludes an interim protection order; ‘related person’ means any member of the family or household of a complainant, or a person in a close relationship with the complainant; 40 ‘related person abuse’ means to— (a) (b) (c) threaten the complainant with causing of physical violence to, or the damage of property of, a related person; threaten a related person with physical violence or causing damage to the property of, such a person; threaten a related person with causing of physical violence to, or the damage of property of, a complainant; or (d) commit an act of physical violence against or cause damage to 45 property of a related person, where such actions can in the circumstances be regarded to cause harm to the complainant; 50 ‘residence’ means any part of any structure, including a building, house, room, shed, hut, tent, mobile home, caravan, boat or other place, that is used as a place of residence by a natural person, irrespective whether or not other persons also occupy that structure; ‘respondent’ means any person who is or has been in a domestic relationship with a complainant and who— (a) has committed or allegedly committed; or (b) has used or allegedly used a third party actor to commit or allegedly to commit, an act of domestic violence against the complainant; 55 60 9 ‘sexual abuse’ means any conduct that abuses, humiliates, degrades or otherwise violates the sexual integrity of the complainant, irrespective of whether or not such conduct constitutes a sexual offence as contemplated in the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007 (Act No.
32 of 2007); ‘sexual harassment’ means any— (a) unwelcome sexual attention from a respondent who knows or ought reasonably to know that such attention is unwelcome; (b) unwelcome explicit or implicit behaviour, suggestions, gestures, remarks made, communications sent or delivered, or electronic communications disclosed, to the complainant— (i) of a sexual nature; or (ii) regarding the complainant’s or orientation, gender or gender expression, related person’s sexual (c) (d) by a respondent, that has the effect of offending, intimidating or humiliating the complainant; implied or expressed promise of reward made to the complainant if they comply with a sexually oriented request; or implied or expressed threat of reprisal made to, or actual reprisal against, the complainant for refusal to comply with a sexually oriented request; ‘sheriff’ means a sheriff appointed in terms of section 2 (1) of the Sheriffs Act, 1986 (Act No.
90 of 1986), or an acting sheriff appointed in terms of section 5(1) of the said Act; ‘social worker’ means a person registered as a social worker in terms of section 17 of the Social Service Professions Act, 1978 (Act No.
110 of 1978); ‘spiritual abuse’ means— (a) advocating hatred against the complainant because of their religious or spiritual beliefs, that constitutes incitement to cause harm to the complainant; (b) preventing the complainant from exercising their constitutional right thought, belief and opinion, including to give external manifestation to their religious or spiritual convictions and beliefs; or to freedom of conscience, religion, (c) manipulating the complainant’s religious or spiritual convictions and beliefs to justify or rationalise abusing the complainant; [‘stalking’ means repeatedly following, pursuing, or accosting the complainant;] ‘third party actor’ means any person— (a) who is not or has not been in a domestic relationship with a complainant; (b) who conspired with, was procured by, or used by, the respondent to commit an act of domestic violence against the complainant; and (c) who— (i) committed or allegedly committed an act of domestic violence against the complainant; or (ii) aided or allegedly aided the respondent in the commission of an act of domestic violence against the complainant; ‘this Act’ includes the regulations[.
]; and ‘weapon’ means— (a) any airgun, ammunition, imitation ﬁrearm, muzzle loading ﬁrearm, ﬁrearm or handgun as deﬁned in section 1 of the Firearms Control Act, 2000 (Act No.

60 of 2000); or (b) any object, other than that which is referred to in paragraph (a), which is likely to inﬂict grievous bodily harm or a dangerous wound, if it were used to commit an assault.

(2) (a) This Act does not prevent a complainant from applying for relief in terms of the Protection from Harassment Act, 2011 (Act No.
17 of 2011), where a third party actor committed an act which, if committed by a respondent would amount the to domestic violence against complainant, and which constitutes harassment in terms of that Act.

5 10 15 20 25 30 35 40 45 50 55 60 10 (b) A complainant may simultaneously with an application for a protection order in terms of section 4, also apply for the relief referred to in paragraph (a) against a third party actor.
(c) A respondent who uses a third party actor to commit an act of domestic violence against a complainant, is for purposes of this Act regarded as having committed such act of domestic violence, personally.’’.

‘‘Amendment of section 2 of Act 116 of 1998 3.


Section 2 of the principal Act, is hereby amended by the substitution for subparagraph (c) of the following subparagraph: ‘‘(c) if it is reasonably possible to do so, explain to the complainant the content of such notice in the prescribed manner, including the remedies at [his or her] their disposal in terms of this Act and the right to lodge a criminal complaint, if applicable.’’.

Insertion of sections 2A and 2B in Act 116 of 1998 4.
The following sections are hereby inserted in the principal Act after section 2: ‘‘Obligations of functionaries relating to domestic violence 2A.

(1) The Minister may, by notice in the Gazette, designate any other person— (a) belonging to a class or category of persons; or (b) who is in the employ of any class or category of entities, as a functionary.
(2) A functionary, who in the course of the performance of their duties or the exercise of their functions obtains information which, after evaluation by them, causes them to believe or suspect on reasonable grounds, that a child, a person with a disability or an older person, may be a complainant as contemplated in section 1— (a) must without delay— (i) complete a report in the prescribed form setting out the (ii) reasons for such belief or suspicion; and in the prescribed manner submit the report to— (aa) a social worker; or (bb) a member of the South African Police Service; (b) must conduct a risk assessment as contemplated in section 18B; and (c) may, after the evaluation of the risk assessment referred to in paragraph (b), provide or refer the complainant for further services as contemplated in section 18B.
(3) A functionary referred to in subsection (2)— (a) who makes the report, referred to in subsection (2)(a), in good faith, is not liable to civil, criminal or disciplinary action on the basis of the report, despite any law, policy or code of conduct prohibiting the disclosure of personal information; and is entitled to have their identity kept conﬁdential, unless the interests of justice require otherwise.

(b) Obligation to report domestic violence and to provide information 45 2B.
(1) In circumstances, other than those contemplated in section 2A(2), an adult person who knows, or believes or suspects on reasonable grounds, that an act of domestic violence has been committed against a child, a person with a disability or an older person, must report such knowledge, belief or suspicion as soon as possible, to a social worker or the South African Police Service.
(2) The report referred to in subsection (1) must— (a) be made in the prescribed form; (b) set out the reasons for such knowledge, belief or suspicion; and 50 11 (c) in the prescribed manner be submitted to a social worker or a member of the South African Police Service.
(3) A person referred to in subsection (1)— (a) who makes the report in good faith, is not liable to civil, criminal or disciplinary action on the basis of the report, despite any law, policy or code of conduct prohibiting the disclosure of personal informa- tion; and is entitled to have their identity kept conﬁdential, unless the interests of justice require otherwise.

(b) 5 (4) A person who fails to comply with subsection (1), is guilty of an 10 offence.’’.
Substitution of section 3 of Act 116 of 1998 5.

The following section is hereby substituted for section 3 of the principal Act: ‘‘Arrest by peace officer without warrant and assistance to com- plainant 15 3.
(1) A peace officer who attends the scene of an incident of domestic violence, may without a warrant, arrest any respondent [at the scene of an incident of domestic violence whom he or she] who such peace officer reasonably suspects of having committed [an offence containing an element of violence against a complainant] an act of domestic violence which constitutes an offence in terms of any law.
(2) A peace officer must, without a warrant, arrest any respondent at the scene of an incident of domestic violence who they on reasonable grounds believe of having committed an act of domestic violence which constitutes an offence containing an element of violence against a complainant.
(3) A peace officer contemplated in subsection (1) or (2), who is not a member of the South African Police Service, who responds to an incident of domestic violence, must— (a) where necessary, make arrangements for the complainant to obtain medical attention; (b) where a protection order has not been issued against the respondent, or where there is no pending application for a protection order against that respondent— (ii) (i) provide the complainant with a prescribed list containing the names and contact particulars of accessible shelters and public health establishments; if it is reasonably possible to do so, hand a notice containing information as prescribed to the complainant in the official language of the complainant’s choice; is reasonably possible to do so, explain to the if complainant including the the content of such notice, remedies at the complainant’s disposal in terms of this Act and the right to lodge a criminal complaint, if applicable; and (c) provide such further assistance as contemplated in section 18B.’’.
(iii) it Insertion of section 3A in Act 116 of 1998 6.

The following section is hereby inserted in the principal Act after section 3: ‘‘Entering of private residence for purposes of obtaining evidence 3A.
(1) If a member of the South African Police Service— (a) (b) receives a report that an offence containing an element of physical violence has allegedly been committed during an incident of domestic violence; and reasonably suspects that a person who may furnish information regarding that alleged offence is in any private residence, 20 25 30 35 40 45 50 12 that member may, notwithstanding the proviso to section 26 of the Criminal Procedure Act, 1977, without a warrant, enter that residence for the purposes of interrogating that person and obtaining a statement from them.
(2) Any member referred to in subsection (1)— (a) must audibly demand admission to the residence and notify of the purpose for which the member seeks to enter that residence; and (b) may, if an occupier of the residence does not provide admission to the residence, use such force as may be reasonably necessary to overcome any resistance against entry to the residence, including the breaking of any door or window of that residence.’’.

5 10 Substitution of section 4 of Act 116 of 1998 7.
The following section is hereby substituted for section 4 of the principal Act: ‘‘Application for protection order 4.

(1) (a) Any complainant may, on an ex parte basis, in the prescribed 15 form and manner, apply to the court for a protection order.

(b) (i) Subject to subparagraph (ii), the application referred to in paragraph (a) must be lodged— (aa) with the clerk of the court; or (bb) electronically, by submitting the application to an electronic address, of the court having jurisdiction.
(ii) In the case of an urgent application outside ordinary court hours or on a day which is not an ordinary court day, the application may, subject to any direction of the court, be submitted directly to the court.
(2) If the complainant or a person referred to in subsection (3) is not represented by a legal representative, the clerk of the court must inform the complainant or person, in the prescribed manner of— [of] the relief available in terms of this Act; and (a) [of] the right (b) respondent, respondent.
to also lodge a criminal complaint against the if a criminal offence has been committed by the (3) law, (a) Notwithstanding the provisions of any other the application for a protection order may, subject to paragraph (b), be brought on behalf of the complainant by [any other] a functionary or another person[, including a counsellor, health service provider, member of the South African Police Service, social worker or teacher,] who has a material interest in the wellbeing of the complainant [: Provided that the application must be brought with the written consent of the complainant, except in circumstances where the complainant is— (a) a minor; (b) mentally retarded; (c) unconscious; or (d) a person whom the court is satisﬁed is unable to provide the 20 25 30 35 40 45 required consent].
(b) An application referred to in paragraph (a) must be brought with the written consent of the complainant, except in circumstances where the complainant is— (i) a child and the court considers the application to be in the best 50 interests of that child; or (ii) a person who, in the opinion of the court, is unable to provide the required consent.
(4) Notwithstanding the provisions of any other law, any [minor] child, or any person on behalf of a [minor] child, may apply to the court for a protection order without the consent or assistance of a parent, guardian or any other person.
(5) The application referred to in subsection (1) may be [brought] considered by the court, outside ordinary court hours or on a day which 55 13 is not an ordinary court day, if the court is satisﬁed, from information provided in the application, that a reasonable belief exists, that the complainant is suffering or may suffer [undue hardship] harm, if the application is not dealt with immediately.

(6) Supporting affidavits by persons who have knowledge of the matter concerned may accompany the application.
(7) (a) The clerk of the court must capture all applications referred to in subsection (1)(b), any supporting affidavit and such other information as may be prescribed in the integrated electronic repository.

(b) The [application and affidavits must be lodged with the] clerk of the court [who shall forthwith] must immediately submit [the] an application referred to in subsection (1)(b)(i) and supporting affidavits to the court.’’.

5 10 Insertion of section 4A in Act 116 of 1998 8.


The following section is hereby inserted in the principal Act after section 4: 15 ‘‘Domestic violence safety monitoring notice 4A.
(1) A complainant, who shares a joint residence with the respondent, may— (a) simultaneously with the application for a protection order in terms of section 4(1), or where the court has not issued an interim protection order, at any stage before the court issues a ﬁnal protection order or discharges the matter in terms of section 6; or (b) where an interim protection order contemplated in section 5(2), or a ﬁnal protection order contemplated in section 6, is in force, in the prescribed form and manner apply to the court for the issuing of a domestic violence safety monitoring notice.
(2) The application referred to in subsection (1) must be lodged— (a) with the clerk of the court; or (b) electronically, by submitting the application to an electronic address, of the court having jurisdiction.

(3) Supporting affidavits by persons who have knowledge of the matter concerned may accompany the application.

(4) The clerk of the court must as soon as is reasonably possible submit an application referred to in subsection (2) to the court.
(5) The court must as soon as is reasonably possible consider an application submitted to it in terms of subsection (4) and may, for that purpose, consider such additional evidence as it deems ﬁt, including oral evidence or evidence by affidavit, which must form part of the record of the proceedings.
(6) If the court is satisﬁed from information on oath or affirmation as set out in the application and such additional evidence contemplated in subsection (5), that— (a) there are reasonable grounds for believing that the complainant and the respondent share a joint residence; and there are reasonable grounds to suspect that the respondent poses a threat to the complainant’s personal safety, (b) the court may issue a domestic violence safety monitoring notice in the prescribed form.
(7) A court may in terms of a domestic violence safety monitoring notice, order the station commander of a police station servicing the area where the complainant resides to direct a member of the South African Police Service under their command, for the period speciﬁed in the notice, and subject to any conditions speciﬁed in the notice, to do any or all of the following: (a) To contact the complainant at regular intervals by means of an electronic service at an electronic address as speciﬁed in an Annexure to the notice and to enquire about the complainant’s wellbeing; 20 25 30 35 40 45 50 55 14 (b) at regular intervals, to visit the joint residence and to see and to communicate in private with the complainant; and (c) where a member is prevented from seeing the complainant, to— (i) enter the joint residence to see and to communicate in private with the complainant; and (ii) overcome resistance against such entry by using as much force as is reasonably required by the circumstances, includ- ing breaking a door or window of the residence.
(8) The notice must be served on the station commander and the the Annexure respondent, referred to in subsection (7)(a), may not be disclosed to the respondent.
in the prescribed manner: Provided that (9) The clerk of the court must— (a) in the prescribed form and manner— (iii) (i) notify the complainant of the outcome of an application; (ii) where the court has issued a domestic violence safety monitoring notice, upon service or upon receipt of a return of service of the notice on the respondent, notify the complain- ant thereof; and forward a certiﬁed copy of the notice to the complainant; and (b) capture the application referred to in subsection (2), the domestic violence safety monitoring notice issued in terms of subsection (6), the return of service of the notice on the respondent and the station commander in terms of subsection (8), and such other information as may be prescribed for purposes of this section, on the integrated electronic repository of protection orders.
(10) For purposes of subsection (7)(b) and (c), a member must execute the notice in the prescribed manner.

(11) At the expiry of the period for which the notice was issued, a report containing the prescribed information must be ﬁled with the clerk of the court in the prescribed manner by the station commander referred to in subsection (7) or their delegate.
(12) The National Commissioner of the South African Police Service in consultation with the Director-General must, in terms of section 18(3), issue national instructions as may be necessary for the purpose of giving effect to the provisions of this section by the South African Police Service.’’.

5 10 15 20 25 30 35 Substitution of section 5 of Act 116 of 1998, as amended by section 19 of Act 55 of 2003 9.
The following section is hereby substituted for section 5 of the principal Act: ‘‘Consideration of application and issuing of interim protection order 40 5.

(1) The court must as soon as is reasonably possible consider an application submitted to it in terms of section 4(1)(b)[(7)] and may, for that purpose, consider such additional evidence as it deems ﬁt, including oral evidence or evidence by affidavit, which [shall] must form part of the record of the proceedings.
(1A) Where circumstances permit, a court that considers an applica- tion referred to in subsection (1), may cause an investigation to be carried out— (a) [and where a Family Advocate is available, a court may, in the circumstances as may be prescribed in the Mediation in Certain Divorce Matters Act, 1987 (Act No.
24 of 1987), when consider- ing an application contemplated in subsection (1), cause an investigation to be carried out] by a Family Advocate contem- plated in the Mediation in Certain Divorce Matters Act, 1987 (Act No.
24 of 1987), in whose area of jurisdiction that court is, with regard to the welfare of any [minor or dependent] child affected by the proceedings in question, whereupon the provisions of that Act apply with the changes required by the context; or 45 50 55 15 (b) by a designated social worker as contemplated in section 47 of the Children’s Act, 2005 (Act No.
38 of 2005), if it appears to that court that a child involved in or affected by proceedings in question is in need of care and protection, whereupon the provisions of that Act apply with the changes required by the context.
(2) If the court is satisﬁed that— (a) there is prima facie evidence that the— [(a)](i) [the] respondent is committing, or has committed an act of domestic violence; [and] [(b)](ii) [undue hardship may be suffered by the] complainant is suffering or may suffer harm as a result of such domestic violence[ if a protection order is not issued immediately,]; and (b) the issuing of a protection order is immediately necessary to protect the complainant against the harm contemplated in paragraph (a)(ii), the court must, notwithstanding the fact that the respondent has not been given notice of the proceedings contemplated in subsection (1), issue an interim protection order in the prescribed form against the respondent[, in the prescribed manner].
5 10 15 (3) (a) [An] Upon the issuing of an interim protection order, [must] 20 the court must direct that— (i) certiﬁed copies of the application referred to in section 4(1)(b), and (ii) (iii) any supporting affidavit that accompanied the application; the record of any evidence noted in terms of subsection (1); and the original interim protection order issued in terms of sub- section (2), be served on the respondent in the prescribed manner[ and must call upon the respondent to show cause on the return date speciﬁed in the order why a protection order should not be issued] by the clerk of the court, sheriff or peace officer identiﬁed by the court.
(b) [A copy of the application referred to in section 4 (1) and the record of any evidence noted in terms of subsection (1) must be served on the respondent together with the interim protection order] An interim protection order must call on the respondent to show cause on the return date speciﬁed in the order why the interim protection order should not be made ﬁnal.
(c) The clerk of the court must immediately, upon the issuing of an 25 30 35 interim protection order— (i) in the prescribed form and manner notify the complainant thereof; and 40 (ii) capture a copy of the interim protection order on the integrated electronic repository of protection orders.
(4) (a) If the court does not issue an interim protection order in terms of subsection (2), the court must direct the clerk of the court, to cause certiﬁed copies of the application concerned and any supporting affidavits to be served on the respondent in the prescribed manner, together with a prescribed notice calling on the respondent to show cause on the return date speciﬁed in the notice why a protection order should not be issued.
(b) The clerk of the court must in the prescribed form and manner, notify the complainant that the court has not issued an interim protection order and of the return date.

(c) Upon service or upon receipt of a return of service of the documents referred to in paragraph (a), on the respondent, the clerk of the court must capture the return of service in the integrated electronic repository of protection orders.
(5) (a) The return dates referred to in subsections (3)[(a)](b) and (4)(a) may not be less than 10 days after service has been effected upon the respondent: Provided that the return date referred to in subsection (3)[(a)](b) and (4)(a) may be anticipated by the respondent upon not less than 24 hours’ written notice to the complainant and the court.

45 50 55 60 16 (b) The clerk of the court must capture the written notice in the integrated electronic repository of protection order and of the return date.
(6) An interim protection order [shall have no] is of force and effect [until it has been served on] from the time that the existence and content of the order have been served on the respondent.
(7) Upon service or upon receipt of a return of service of [an interim protection order] the documents referred to in subsection (3)(a), on the respondent, the clerk of the court must [forthwith]— (a) capture the return of service in the integrated electronic repository (b) of protection orders; in the prescribed form and manner notify the complainant thereof; and (c) cause— 5 10 [(a)](i) a certiﬁed copy of the interim protection order; and [(b)](ii) the original warrant of arrest contemplated in section 8(1)(a), 15 to be served on the complainant in the prescribed manner.
(8) Upon service or upon receipt of a return of service of the documents referred to in subsection (7)(c), on the complainant, the clerk of the court must— (a) capture the return of service in the integrated electronic repository 20 (b) of protection orders; and in the prescribed manner, forward certiﬁed copies of the interim protection order and of the warrant of arrest contemplated in section 8(1)(a) to the police station of the complainant’s choice.
(9) An interim protection order issued in terms of this section remains 25 in force until it is set aside by a competent court.’’.

Insertion of sections 5A, 5B and 5C in Act 116 of 1998 10.

The following sections are hereby inserted in the principal Act after section 5: ‘‘Attendance of witnesses 5A.
(1) The court may, in the prescribed manner and at any stage of proceedings under this Act, cause to be subpoenaed any person as a witness at those proceedings or to provide any book, document or object, if the evidence of that person or book, document or object appears to the court essential to the just decision of the case.

(2) (a) A person who is subpoenaed as provided for in subsection (1) must attend the proceedings and remain in attendance at the proceedings until excused by the court.
(b) A person who— (i) is in attendance at any proceedings under this Act, though not subpoenaed as a witness; and is warned by the court to remain in attendance at the proceedings, (ii) must remain in attendance until excused by the court.
(3) Any person who is subpoenaed in terms of subsection (1) or warned in terms of subsection (2) to attend proceedings and who fails to— (a) attend or to remain in attendance; (b) appear at the place and on the date and at the time to which the proceedings in question may be adjourned; (c) remain in attendance at those proceedings as so adjourned; or (d) produce any book, document, object or thing speciﬁed in the subpoena, is guilty of an offence.
30 35 40 45 50 Electronic communications service provider to furnish particulars to court 5B.
(1) If an application for a protection order is made in terms of is necessary to determine whether an electronic section 4 and it 55 17 communication, which was used to commit an act of domestic violence, was disclosed by the respondent, the court may— (a) adjourn the proceedings to any time and date on the terms and (b) conditions which the court deems appropriate; and issue a direction in the prescribed form, directing an electronic communications service provider, that is believed to be able to furnish such particulars, to furnish the court in the prescribed manner by means of an affidavit in the prescribed form with— (i) (ii) the electronic communications identity number from where the electronic communication originated; the name, surname, identity number and address of the person to whom the electronic communications identity number has been assigned; (iii) any information which indicates that the electronic commu- nication was or was not sent from the electronic communica- tions identity number of the person to the electronic communications identity number of the complainant; (iv) any information that is available to an electronic communi- cations service provider that may be of assistance to the court to identify the person who disclosed the electronic commu- nication or the electronic communications service provider, that provides a service to that person; (v) any information that is available to an electronic communi- cations service provider which may be of assistance to the court to identify the electronic communications service provider whose service is used to host or was or is used to disclose the data message in question; or (vi) an assessment whether or not the electronic communications service provider is in a position— (aa) to remove the electronic communication or a link to the 30 electronic communication; or (bb) to disable access to such electronic communication or a link to such electronic communication.
(2) If the court issues a direction in terms of subsection (1) the court must direct that the direction be served on the electronic communications service provider in the prescribed manner: Provided, that if the court is satisﬁed that the direction cannot be served in the prescribed manner, the court may make an order allowing service to be effected in the form and manner speciﬁed in that order.
(3) (a) The information referred to in subsection (1)(b) must be provided to the court within ﬁve ordinary court days from the time that the direction is served on an electronic communications service provider.
(b) An electronic communications service provider on which a direction is served, may in the prescribed manner by means of an affidavit in the prescribed form apply to the court for— (i) an extension of the period of ﬁve ordinary court days referred to in paragraph (a) for a further period of ﬁve ordinary court days on the grounds that the information cannot be provided timeously; or the cancellation of the direction on the grounds that— (aa) it does not provide an electronic communications service to (ii) the complainant or the respondent; (bb) the requested information is not available in the records of the electronic communications service provider; or (cc) its service is not used to host or was or is not used to disclose the electronic communication in question.
(4) After receipt of an application in terms of subsection (3)(b), the court— (a) must consider the application; (b) may, in the prescribed manner, request such additional evidence by way of an affidavit from the electronic communications service provider as it deems ﬁt; 35 40 45 50 55 60 18 (c) must give a decision in respect thereof; and (d) must inform the electronic communications service provider in the prescribed form and in the prescribed manner of the outcome of the application.
(5) (a) The court may, on receipt of an affidavit from an electronic communications service provider which contains the information re- ferred to in subsection (1)(b), consider the issuing of an interim protection order in terms of section 5(2) against the respondent on the date to which the proceedings have been adjourned.

(b) Any information furnished to the court in terms of subsection (1)(b) forms part of the evidence that a court may consider in terms of section 5(1).
(6) (a) If the court issues a protection order, the court must at the same time, in the prescribed form and manner, issue an order to the electronic communications service provider whose electronic communications service is used to host or disclose the electronic communication which was used to commit an act of domestic violence, to immediately remove or disable access to the electronic communication.
(b) An electronic communications service provider who is ordered to remove or disable access to an electronic communication in terms of paragraph (a), may, within 14 days after the order has been served on it in terms of paragraph (a), in the prescribed manner by means of an affidavit in the prescribed form, apply to the court for the setting aside or amendment of the order referred to in paragraph (a).
(c) The court must as soon as is reasonably possible consider an application submitted to it in terms of paragraph (b) and may for that purpose, in the prescribed manner by means of an affidavit in the prescribed form request such additional evidence by way of an affidavit from the electronic communications service provider as it deems ﬁt, which must form part of the record of the proceedings.
(d) The court may if good cause has been shown for the variation or setting aside of the order, issue an order to this effect and in the prescribed form and manner inform the electronic communications service provider of the outcome of the application.
(7) An electronic communications service provider must, within 48 hours after providing the information referred to in subsection (1)(b) to inform the the court, by means of an electronic communication, respondent of the— (a) (b) (c) information that was provided to the court; reference number of the direction; and address of the court who issued the direction.
(8) (a) The Director-General: Communications and Digital Technolo- gies, must compile and maintain a list of electronic communications service providers that can provide the courts with the information referred to in subsection (1)(b).
(b) The list referred to in paragraph (a) must contain the following particulars of each such electronic communications service provider: (i) The name and physical and postal addresses; (ii) an electronic mail address; (iii) a telephone and facsimile number; and (iv) the names of persons who are responsible for providing the information referred to in subsection (1)(b).
(c) An electronic communications service provider must, in the prescribed manner and without undue delay, bring any change of any of the particulars referred to in paragraph (b) to the attention of the Director-General: Communications and Digital Technologies.

(d) The Director-General: Communications and Digital Technologies must, in the prescribed manner and without undue delay, make the list referred to in paragraph (a) and any subsequent amendments thereto available to all courts.
(9) The Minister must, by notice in the Gazette, prescribe reasonable tariffs of compensation payable to electronic communications service providers for— 19 (a) providing the information referred to in subsection (1)(b); (b) providing the information contemplated in subsection (7) to the (c) respondent; and removing or disabling access to the electronic communications which was used to commit an act of domestic violence, as contemplated in subsection (6)(a).
(10) (a) The complainant is liable for the costs, referred to in subsection (9), in respect of the furnishing of the information referred to in subsection (1)(b), providing the information contemplated in subsec- tion (7) to the respondent, and the removing or disabling access to the electronic communication, referred to in subsection (6)(a).
(b) The court may, at any time hold an inquiry into— (i) (ii) any other circumstances which, in the opinion of the court, should the means of the complainant; and be taken into consideration, to determine the ability of the complainant to pay the costs referred to in paragraph (a).
(c) At the conclusion of the inquiry referred to in paragraph (b), the court may make such order as the court deems ﬁt relating to the payment of the costs referred to in paragraph (a), including an order directing the State, subject to section 15, to pay such costs within available resources.

(d) The court may, if it has ordered the State to pay the costs referred to in paragraph (c), direct who must refund the costs so paid by the State.
(11) Any electronic communications service provider or employee of an electronic communications service provider who— (a) fails to furnish the required information within ﬁve ordinary court days from the time that the direction is served on such electronic communications service provider to a court in terms of subsection (3)(a) or such extended period allowed by the court in terms of subsection (3)(b); (b) makes a false statement in an affidavit referred to in subsection (c) (1)(b), (3)(b), (6)(b) or (c), in a material respect; fails to comply with an order to remove or disable access to the electronic communications in terms of subsection (6)(a) or any variation in terms of subsection (6)(d) thereof; or fails to comply with subsection (7), (d) is guilty of an offence.
(12) For purposes of this section ‘‘host’’ means to store an electronic communication on an electronic communications network that is used to provide an electronic communications service, where it can be viewed, copied or downloaded.

Existing and reciprocal orders or applications 5C.


(1) The court must before it issues an interim protection order referred to in section 5(2) or a ﬁnal protection order referred to in section 6, establish whether there is any other order against the complainant or respondent, which was previously issued by a court that may have a bearing on the application before the court.
(2) Where it is established by the court, that considers an application in terms of section 5(1), that there is another application in terms of section 5(1) pending between the same parties, the court must— (a) order that both applications be dealt with together; (b) adjourn the matter for a hearing as contemplated in section 6; and (c) give directions regarding the notiﬁcation of parties and service of documents.
(3) Where existing orders are in place, the court— (a) must record those orders on the court ﬁle; (b) must, where it issues a protection order, or imposes any condition or makes any order which it is competent to impose or make under section 7, ensure that the protection order does not contradict any such existing orders; and 20 (c) may, where it is satisﬁed that urgent relief against an act of domestic violence is necessary, notwithstanding any other order, issue a protection order or impose any condition or make any order which it is competent to impose or make under section 7, and order that they remain in force for a limited period as determine in order to afford the complainant an opportunity to apply for the amendment, variation or setting aside of such order.’’.
Substitution of section 6 of Act 116 of 1998 11.

The following section is hereby substituted for section 6 of the principal Act: ‘‘Issuing of ﬁnal protection order 6.
(1) If the respondent does not appear on a return date contemplated in section 5(3)[ or (4)], and if the court is satisﬁed that— (a) proper service has been effected on the respondent; and (b) the application contains prima facie evidence that the respondent has committed or is committing an act of domestic violence, the court must issue a ﬁnal protection order in the prescribed form.
(1A) If the respondent does not appear on a return date contemplated in section 5(4), and if the court is satisﬁed that proper service has been effected on the respondent, the court must proceed to hear the matter and if the court after considering— (a) any evidence previously received in terms of section 5(1); and (b) such further affidavits or oral evidence as it may direct, that was adduced during the hearing, which must form part of the record of the proceedings, ﬁnds, on a balance of probabilities, that the respondent has committed or is committing an act of domestic violence, the court must issue a ﬁnal protection order in the prescribed form.
(2) If the respondent appears on the return date contemplated in section 5(3) or (4), in order to oppose the issuing of a protection order, the court must proceed to hear the matter and— (a) consider any evidence previously received in terms of section 5(1); [and] (b) consider such further affidavits or oral evidence as it may direct, which [shall] must form part of the record of the proceedings; and if there is a dispute of fact, the court— (c) (i) may on application of the complainant or the respondent adjourn the proceedings to any time and date on the terms and conditions which the court deems appropriate in order to afford the party concerned the opportunity to adduce further evidence; and (ii) must extend the interim protection order.
(2A) (a) If the respondent appears but the complainant does not appear, or where both the respondent and the complainant do not appear, on the return date referred to in section 5(3), the court must extend the interim protection order and the return date, and the clerk of the court must notify— the complainant; or the complainant and the respondent, where both did not appear, (i) (ii) in the prescribed form and manner of the extended date.
(b) The court may discharge the interim protection order if the 50 complainant does not appear on the extended date.

(2B) (a) If the respondent appears but the complainant does not appear, or where both the respondent and the complainant do not appear, on the return date referred to in section 5(4), the court may, after due consideration of any evidence previously received in terms of section 5(1)— (i) (ii) discharge the matter.
set a new return date for the hearing of oral evidence; or 55 21 (b) The clerk of the court must, in the prescribed form and manner, notify the parties of the extended date in terms of paragraph (a)(i).

(3) (a) Sections 51A and 51C of the Magistrates’ Courts Act, 1944, apply to a hearing contemplated in subsection (2).
(b) In instances where paragraph (a) does not apply, [T]the court may, [on] of its own accord or [on] at the request of the complainant or a witness who is in a domestic relationship with the respondent [, if it is of the opinion that it is just or desirable to do so], and if it is in the interests of justice to do so, order that in the examination of [witnesses, including] the complainant or a witness, a respondent who is not represented by a legal representative— (a) is not entitled to cross-examine directly [a person who is in a domestic relationship with the respondent] the complainant or such a witness; and [shall] must put any question to the complainant or such a witness by stating the question to the court, and the court is to repeat the question accurately to the [respondent] complainant or witness.
(4) The court must, after a hearing as contemplated in subsection (2), issue a ﬁnal protection order in the prescribed form if it ﬁnds, on a balance of probabilities, the respondent has committed or is committing an act of domestic violence.
that (b) (5) [Upon] On the issuing of a ﬁnal protection order the [clerk of the] court must [forthwith in the prescribed manner cause] direct that— the original of such order [to] must be served on the respondent (a) within 48 hours or as soon as reasonably possible; and (b) a certiﬁed copy of such order, and the original warrant of arrest contemplated in section 8(1)(a), [to] must be served on the complainant, in the prescribed manner by the clerk of the court, sheriff or peace officer identiﬁed by the court.
(6) (a) The clerk of the court must [forthwith] immediately, in the prescribed manner, forward certiﬁed copies of any protection order and of the warrant of arrest contemplated in section 8(1)(a) to the police station of the complainant’s choice.
(b) The clerk of the court must capture— (i) (ii) (iii) the ﬁnal protection order; the warrant of arrest contemplated in section 8(1)(a); and the return of service of— (aa) the original ﬁnal protection order on the respondent; and (bb) a copy of the ﬁnal protection order and warrant of arrest on the complainant, on the integrated electronic repository of protection orders.
(7) Subject to the provisions of [section] sections 5C(3)(c) and 7(7)(b), a ﬁnal protection order issued in terms of this section— (a) is of force and effect from the time that the existence and content of the order have been served on the respondent; and remains in force until it is set aside, and the execution of such order [shall] is not [be] automatically suspended upon the noting of an appeal.’’.

(b) Insertion of section 6A in Act 116 of 1998 12.


The following section is hereby inserted in the principal Act after section 6: ‘‘Integrated electronic repository for domestic violence protection orders 6A.

(1) The Director-General must develop, establish and maintain the integrated electronic repository for domestic violence protection orders.
(2) (a) The Director-General must appoint or designate a ﬁt and proper person, with due regard to their relevant expertise, experience, consci- entiousness and integrity, as administrator of the integrated electronic repository.
22 (b) The administrator of the integrated electronic repository— (i) must carry out the administrative duties relating to the functioning of the integrated electronic repository; (ii) must manage, and exercise administrative control over the integrated electronic repository; (iii) must ensure compliance with any directive issued in terms of (iv) subsection (3); and is, for purposes of the exercise of the powers, performance of the functions and carrying out of the duties conferred upon, assigned to or imposed upon them under this Act, accountable to the Director-General.
(3) In achieving the objectives contemplated in subsection (1), the Director-General must, in consultation with the administrator of the integrated electronic repository and the Information Regulator estab- lished in terms of section 39 of the Protection of Personal Information Act, 2013 (Act No.
4 of 2013), issue directives to provide for— (a) (b) (c) the functional requirements of the integrated electronic repository; the technical speciﬁcations for the integrated electronic repository; the speciﬁcations for the interface between the integrated electronic repository and any authorised party interfacing with the integrated electronic repository; the persons or categories or class of persons who will be authorised to access documents or any other electronic records contained in the integrated electronic repository; the standards governing the information security of the integrated electronic repository; the operation of the integrated electronic repository; the processing of information using the integrated electronic repository; the secure retention and subsequent production of documents or any other electronic records, which may be required for purposes of this Act, and which must be complied with by persons interacting with the integrated electronic repository; the capturing of documents in the integrated electronic repository; any other matter which may be necessary or expedient to prescribe in order to achieve or promote the objects of the integrated electronic repository.’’.
(d) (e) (f) (g) (h) (i) (j) Amendment of section 7 of Act 116 of 1998 13.
Section 7 of the principal Act is hereby amended— (a) by the substitution for subsections (1) and (2) for the following subsections: ‘‘(1) The court may, by means of a protection order referred to in 40 section 5 or 6, prohibit the respondent from— (a) committing or attempting to commit any act of domestic violence; (b) enlisting the help of another person to commit any such act; (c) entering a residence shared by the complainant and the respondent: Provided that the court may impose this prohibition only if it appears to be in the best interests of the complainant; (d) entering a speciﬁed part of such a shared residence; (e) (f) entering the complainant’s residence; entering the complainant’s [place of employment] workplace or place of studies; (g) preventing the complainant who ordinarily lives or lived in a shared residence as contemplated in [subparagraph] paragraph (c) from entering or remaining in the shared residence or a speciﬁed part of the shared residence; [or] (gA) disclosing any electronic communication or making available any communication, as may be speciﬁed in the protection order; or (h) committing any other act as speciﬁed in the protection order.
(2) The court may impose any additional conditions which it deems reasonably necessary to protect and provide for the safety, health or wellbeing of the complainant, including— 45 50 55 60 23 (a) an order— (i) to seize any [arm or dangerous] weapon in the possession or under the control of the respondent, as contemplated in section 9; and [(b)](ii) that a peace officer must accompany the complainant to a speciﬁed place to assist with arrangements regarding the collection of personal property; or (b) the making of a recommendation that the complainant should approach the relevant police station to investigate the matter with the view to institute a criminal prosecution against the respon- dent.’’; (b) by the insertion of the following subsection after subsection (4): that the respondent ‘‘(4A) (a) If the court is satisﬁed, from evidence adduced at a hearing is probably a person in terms of section 6, contemplated in section 33(1) of the Prevention of and Treatment for Substance Abuse Act, 2008 (Act No.
70 of 2008), the court may order the respondent to appear before a speciﬁed magistrate’s court having jurisdiction on a speciﬁed date and time in connection with an enquiry in terms of section 35 of the Prevention of and Treatment for Substance Abuse Act, 2008.
(b) Where the respondent concerned fails to appear at the place and on the date and at the time referred to in paragraph (a), a magistrate of the relevant court may, at the request of a prosecutor attached to the court, issue a warrant referred to in section 33(3) of the Prevention of and Treatment for Substance Abuse Act, 2008, directing that the respondent concerned must be apprehended and be brought before the magistrate.
(c) A prosecutor attached to the relevant court must obtain a report referred to in section 33(4) of the Prevention of and Treatment for Substance Abuse Act, 2008.
(d) Section 35 of the Prevention of and Treatment for Substance Abuse Act, 2008, applies, with the necessary changes required by the context, in respect of a respondent who appears before a magistrate, in pursuance of an order made under paragraph (a), as if they were a person brought before the said magistrate in terms of section 33 of that Act and as if the report obtained in terms of paragraph (c) were a report obtained in terms of section 33(4) of that Act.
(e) A copy of the record of the hearing in terms of section 6, certiﬁed or purporting to be certiﬁed by the clerk of the court or, in the case where the proceedings were recorded by electronic means, by the person who transcribed the proceedings, as a true copy of such record may, subject to subsection (5) and any direction of the court referred to in paragraph (a), be produced at the said enquiry as evidence.’’; (c) by the substitution for subsection (5) of the following subsection: ‘‘(5) (a) The physical, home, study and work address and contact details of the complainant or related person to whom the protection order relates must be omitted from the protection order, unless the nature of the the order necessitates the inclusion of such [address] terms of particulars.
(b) The court may issue any directions to ensure that the complainant’s or related person’s physical, home, study and work address and contact details [is] are not disclosed in any manner which may endanger the safety, health or wellbeing of the complainant or related person.
(c) Where the complainant or related person is a child, the physical, home and work addresses of the complainant or related person shall not be disclosed until a children’s court inquiry into the matter has been held.’’; and (d) by the substitution for subsection (7) of the following subsection: ‘‘(7) (a) The court may not refuse— to issue a protection order; or (i) to impose any condition or make any order which it is competent to (ii) impose or make under this section, merely on the grounds that other legal remedies are available to the complainant.
24 (b) If the court is of the opinion that any provision of a protection order deals with a matter that should, in the interests of justice, be dealt with further in terms of any other relevant law, including the Maintenance Act, 1998, the court must order that such a provision [shall] must be in force for such limited period as the court determines, in order to afford the party concerned the opportunity to seek appropriate relief in terms of such law.’’.
Amendment of section 8 of Act 116 of 1998 14.
Section 8 of the principal Act is hereby amended— (a) by the substitution for subsection (1) of the following subsection: ‘‘(1) Whenever a court issues a protection order in terms of section 5(2) or 6, the court must make an order— (a) authorising the issue of a warrant for the arrest of the respondent, in (b) the prescribed form; and suspending the execution of such warrant subject to compliance with any prohibition, condition, obligation or order imposed in terms of section 7.’’; (b) by the substitution for subsections (4) and (5) of the following subsections: ‘‘(4) (a) A complainant may hand the warrant of arrest together with an affidavit in the prescribed form, wherein it is stated that the respondent has contravened any prohibition, condition, obligation or order contained in a protection order, to any member of the South African Police Service.
(b) If it appears to the member concerned that, subject to subsection (5), there are reasonable grounds to suspect that the complainant is suffering or may suffer [imminent] harm as a result of the alleged breach of the protection order by the respondent, the member must [forthwith] immediately arrest the respondent for allegedly committing the offence referred to in section 17(1)(a).
(c) If the member concerned is of the opinion that there are insufficient grounds for arresting the respondent in terms of paragraph (b), [he or she] the member must [forthwith] immediately hand a written notice, in the prescribed form, to the respondent which— (i) speciﬁes the name, the residential and work address and the occupation or status of the respondent; (ii) calls upon the respondent to appear before a court, and on the date and at the time, speciﬁed in the notice, on a charge of committing the offence referred to in section 17(1)(a); and (iii) contains a certiﬁcate signed by the member concerned to the effect that [he or she] the member handed the original notice to the respondent and that [he or she] the member explained the import thereof to the respondent.
(d) The member must [forthwith] immediately forward a duplicate original of a notice referred to in paragraph (c) to the clerk of the court concerned, and the mere production in the court of such a duplicate original [shall be] is prima facie proof that the original thereof was handed to the respondent speciﬁed therein.
(5) In considering whether or not the complainant is suffering or may suffer [imminent] harm, as contemplated in subsection (4)(b), the member of the South African Police Service must take into account— (a) the risk to the safety, health or wellbeing of the complainant or related person or damage of their property; the seriousness of the conduct comprising an alleged breach of the protection order; [and] the length of time since the alleged breach occurred; and the nature and extent of the harm previously suffered in the domestic relationship by the complainant or a related person.’’; and (b) (c) (d) 25 (c) by the substitution for subsection (6) of the following subsection: ‘‘(6) Whenever a warrant of arrest is handed to a member of the South African Police Service in terms of subsection (4)(a), the member must inform the complainant of [his or her] their right to simultaneously lay if applicable, and explain to the a charge against complainant how to lay such a charge.’’.
the respondent, 5 Substitution of section 9 of Act 116 of 1998 15.

The following section is hereby substituted for section 9 of the principal Act: ‘‘Seizure of [arms and dangerous] weapons 9.
(1) The court must order a member of the South African Police Service to seize any [arm or dangerous] weapon in the possession or under the control of a respondent as speciﬁed in that order, regardless of the requirements of the respondent’s employment to possess such weapon, if the court is satisﬁed on the evidence placed before it, including any affidavits supporting an application referred to in section 4(1), that— (a) the respondent has threatened or expressed the intention to kill or injure [himself or herself or] themselves, any person in [a] the domestic relationship [or], a related person, or any other person, whether or not by means of such [arm or dangerous] weapon; or the possession of such [arm or dangerous] weapon is not in the best interests of the respondent or any other person in a domestic relationship or a related person, as a result of the respondent’s— (b) (i) state of mind or mental condition; (ii) (iii) use of or dependence on intoxicating liquor or drugs.
inclination to violence; or (2) Any [arm] weapon contemplated in paragraph (a) of the deﬁnition of ‘‘weapon’’ seized in terms of subsection (1) must be [handed over to the holder of an office in the] kept by the South African Police Service [as contemplated in section 11(2)(b) of the Arms and Ammunition Act, 1969 (Act 75 of 1969),] and the court must direct the clerk of the court to refer a copy of the record of the evidence concerned to the [National Commissioner of the South African Police Service] relevant station commander for consideration in terms of section [11] 102 of the [Arms and Ammunition Act, 1969] Firearms Control Act, 2000, and a copy of the record must be submitted to the National Commissioner of the South African Police Service.
(3) Any [dangerous] weapon contemplated in paragraph (b) of the (b) deﬁnition of ‘‘weapon’’ seized in terms of subsection (1)— (a) must be given a distinctive identiﬁcation mark and retained in police custody for such period of time as the court may determine; and [shall] may only be returned to the respondent or, if the respondent is not the owner of the [dangerous] weapon, to the owner thereof, by order of the court and on such conditions as the court may determine: Provided that— (i) (ii) (iii) if, in the opinion of the court, the value of the [dangerous] weapon so seized is below [R200] the amount determined by the Minister in the Gazette from time to time; [or] if the return of the [dangerous] weapon has not been ordered within 12 months after it had been so seized; or if the court is satisﬁed that it is in the interest of the safety of any person concerned, 10 15 20 25 30 35 40 45 50 the court may order that the [dangerous] weapon be forfeited to the State.
55 26 (4) (a) When a ﬁnal protection order has been issued against the respondent in terms of section 6, the clerk of the court must as soon as reasonably possible, in the prescribed manner, inform the relevant station commander and National Commissioner of the South African Police Service thereof.
(b) The relevant station commander must, on receipt of the informa- tion contemplated in paragraph (a)— (ii) (i) determine whether the respondent holds a licence, permit, compe- tency certiﬁcate or other authorisation in terms of the Firearms Control Act, 2000, for any ﬁrearm; in terms of section 102 of the Firearms Control Act, 2000, determine whether the person is unﬁt to possess a ﬁrearm; and inform the National Commissioner of the South African Police Service of their decision regarding the ﬁtness of the person to possess a ﬁrearm.’’.
(iii) Amendment of section 10 of Act 116 of 1998 16.

Section 10 of the principal Act is hereby amended by the substitution for subsections (1) and (2) of the following subsections: ‘‘(1) (a) A complainant or a respondent may, upon written notice to the other party and the court concerned, apply for the variation or setting aside of a protection order referred to in section 6 in the prescribed manner.
(b) The other party must, if they opposes the application, within 10 days of the notice referred to in paragraph (a) being served, give written notice to the other party and the court setting out grounds and facts on which the application is opposed.
(2) If the court is satisﬁed that— (a) circumstances have changed materially since the granting of the original protection order; (b) good cause has been shown for the variation or setting aside of the protection order; and (c) proper service has been effected on the respondent, it may issue an order to this effect: Provided that the court [shall] may not grant such an application to the complainant unless it is satisﬁed that the application is made freely and voluntarily.’’.
Amendment of section 11 of Act 116 of 1998 17.

Section 11 of the principal Act is hereby amended by the substitution for subsection (2) of the following subsection: ‘‘(2) (a) No person [shall] may publish in any manner any information which might, directly or indirectly, reveal the identity of any party to the proceedings.
(b) The court, if it is satisﬁed that it is in the interests of justice, may direct that any [further] information relating to proceedings held in terms of this Act [shall] may not be published: Provided that no direction in terms of this subsection applies in respect of the publication of a bona ﬁde law report which does not mention the names or reveal the identities of the parties to the proceedings or of any witness at such proceedings.’’.
Amendment of section 12 of Act 116 of 1998 18.
Section 12 of the principal Act is hereby amended by the substitution for subsections (1) and (2) of the following subsections: ‘‘(1) Any court within the area in which— (a) (b) (c) the complainant permanently or temporarily resides, studies, carries on business or is employed; the respondent permanently or temporarily resides, studies, carries on business or is employed; or the cause of action arose, has jurisdiction to grant a protection order as contemplated in this Act.
50 55 (2) No speciﬁc minimum period is required in relation to subsection (1)(a), or (b).’’.

Amendment of section 13 of Act 116 of 1998 27 19.


Section 13 of the principal Act is hereby amended by the substitution for subsection (1) of the following subsection: ‘‘(1) (a) Service of any document in terms of this Act must [forthwith] be effected immediately on the person affected by it at their residence or place of business, employment or study in the prescribed manner by the clerk of the court, the sheriff or a peace officer[, or as the court may direct].
(b) Where the complainant and respondent share the same residence, the service of documents— (i) (ii) referred to in sections 5(3)(a) or (4) and 6(5)(a), must be effected by hand on the respondent personally; and referred to in sections 5(7)(c) and 6(5)(b), must be effected by hand on the complainant personally.
(c) If the court is satisﬁed that service of any document cannot be effected in the prescribed manner, the court may make an order allowing service to be effected in the form or manner speciﬁed in that order.’’.

Substitution of section 15 of Act 116 of 1998 20.

The following section is hereby substituted for section 15 of the principal Act: ‘‘[Costs] Orders as to costs of service and directions 15.
(1) The court may [only], having regard to the conduct of the parties as far as it may be relevant, make an order as to costs against any party if it is satisﬁed that such party has acted frivolously, vexatiously or unreasonably.
(2) Notwithstanding subsection (1), the court may make an service of any process or documents; order as to costs against any party in respect of the— (a) (b) obtaining of information as contemplated in section 5B(1)(b); (c) providing of the information referred to in section 5B(7); or (d) removal of, or disabling of access to, electronic communication contemplated in section 5B(6).’’.

5 10 15 20 25 30 Substitution of section 16 of Act 116 of 1998 21.
The following section is hereby substituted for section 16 of the principal Act: ‘‘Appeal and review ‘‘16.

The provisions in respect of appeal and review contemplated in the Magistrates’ Courts Act, 1944[ (Act 32 of 1944)], and the [Supreme Court Act, 1959 (Act 59 of 1959)] Superior Courts Act, 2013 (Act No.

10 of 2013), apply to any proceedings in terms of this Act.’’.

35 Amendment of section 17 of Act 116 of 1998 22.


The following section is hereby substituted for section 17 of the principal Act: ‘‘Offences 17.
(1) Notwithstanding the provisions of any other law, any person who— (a) contravenes any prohibition, condition, obligation or order imposed in terms of section 7; (b) contravenes the provisions of section 11(2)(a); (c) fails to comply with any direction in terms of the provisions of section11(2)(b); or in an affidavit referred to in section 8(4)(a), wilfully makes a false statement in a material respect, (d) is guilty of an offence and liable on conviction— 40 45 50 28 (i) (ii) in the case of an offence referred to in paragraph (a)— (aa) if it is a ﬁrst conviction, to a ﬁne or imprisonment for a period not exceeding ﬁve years or to both such ﬁne and such imprisonment[,]; or (bb) if it is a second or subsequent conviction, to a ﬁne or imprisonment for a period not exceeding 10 years; and in the case of an offence contemplated in paragraph (b), (c), or (d)— (aa) if it is a ﬁrst conviction, to a ﬁne or imprisonment for a period not exceeding two years or to both such ﬁne and such imprisonment [.
]; or (bb) if it is a second or subsequent conviction, to a ﬁne or imprisonment for a period not exceeding four years or to both such ﬁne and such imprisonment.

(2) Any person who is convicted of an offence referred to in section 5A(3), is liable on conviction to a ﬁne or imprisonment for a period not exceeding six months or to both such ﬁne and such imprisonment.
(3) Any electronic communications service provider or employee of an electronic communications service provider, who is convicted of an offence referred to in section 5B(11)(a), (b), (c) or (d), is liable on conviction, in the case of— (a) an electronic communications service provider, to a ﬁne not exceeding R10 000; or (b) an employee of an electronic communications service provider, to a ﬁne or imprisonment for a period not exceeding six months or to both a ﬁne and such imprisonment.
(4) A person who is convicted of an offence referred to in section 2B(4), is liable on conviction to a ﬁne or to imprisonment for a period not exceeding three months or to both a ﬁne and such imprisonment.’’.

5 10 15 20 25 Amendment of section 18 of Act 116 of 1998, as amended by section 36 of Act 1 of 2011 30 23.
Section 18 of the principal Act is hereby amended— (a) by the substitution for subsections (1) and (2) of the following subsections: ‘‘(1) No prosecutor [shall] may— refuse to institute a prosecution; or (a) (b) withdraw a charge, in respect of a contravention of section 17(1)(a) or in respect of any offence against a person in a domestic relationship— 35 (i) involving the inﬂiction of grievous bodily harm or a dangerous wound against the complainant or a related person; or 40 (ii) where the complainant or a related person is threatened with a weapon, unless [he or she has been] authorised thereto, whether in general or in any speciﬁc case, by a Director of Public Prosecutions as contemplated in section 13(1)(a) of the National Prosecuting Authority Act, 1998 (Act No.
32 of 1998), or a senior member of the prosecuting authority designated thereto in writing by such a Director.
(2) The National Director of Public Prosecutions referred to in section 10 of the National Prosecuting Authority Act, 1998, in consultation with the Minister [of Justice] and after consultation with the Directors of Public Prosecutions, must determine prosecution policy and issue policy directives regarding any offence arising from an incident of domestic violence.’’; and (b) by the substitution for paragraph (a) of subsection (4) of the following paragraph: ‘‘(a) Failure by a member of the South African Police Service to comply with an obligation imposed in terms of this Act or the national instructions referred to in subsection (3), constitutes misconduct as contemplated in the South African Police Service Act, 1995, and the Secretariat, established in terms of section 4(1) of the Civilian Secretariat for Police Service Act, [2010] 2011 (Act No.
2 of 2011), must 45 50 55 60 29 [forthwith] be informed immediately of any such failure reported to the South African Police Service.’’.

Insertion of sections 18A and 18B in Act 116 of 1998 24.

The following sections are hereby inserted in the principal Act after section 18: ‘‘Directives for clerks of court 18A.
(1) The Director-General must issue directives with which clerks of the court must comply in the execution of their functions in terms of this Act, and any directives so issued must be published in the Gazette.

(2) The Minister must submit any directives issued in terms of subsection (1) to Parliament before those directives take effect.
(3) The directives referred to in this section must ensure that adequate disciplinary steps will be taken against a clerk of the court who fails to comply with any directive.

(4) Any directive issued under this section may be amended or withdrawn in like manner.

Directives by Departments of Health, Social Development, Basic Education, Higher Education and Training and Communications and Digital Technologies 18B.
(1) The Directors-General: Health, Social Development, Basic Education, Higher Education and Training and Communications and Digital Technologies must— (a) in consultation with the Cabinet members responsible for health, social development, basic education, higher education, science and innovation, police and communications and digital technologies; and (b) after consultation with the Director-General, National Director of Public Prosecutions and National Commissioner of the South African Police Service, publish in the Gazette directives regarding matters which are reasonably necessary or expedient to be provided for and which are to be followed by functionaries and other relevant persons when dealing with incidents of domestic violence, in order to achieve the objects of this Act.
(2) Without limiting the scope of the directives contemplated in subsection (1), the directives must provide for— (a) (b) (c) (d) (e) (f) (g) (h) services to be provided to a complainant who is a child, a person with a disability or an older person; the manner in which a functionary must deal with a complainant who is a child, a person with a disability or an older person, in order to protect them against further acts of domestic violence; services to be provided to a complainant who is an adult person; the assistance that a member of the South African Police Service or a peace officer who attends a scene of an incident of domestic violence must provide to a complainant and affected children; a public education and communication initiative to educate the public on the provisions of this Act, the obligations of the relevant functionaries, in respect of domestic violence incidents and institutions where complaints may be lodged against a functionary or a member of the South African Police Service or a peace officer; the designation of accredited shelters; standards and minimum conditions for the provision of services in accredited shelters; and the manner in which a risk assessment must be conducted in respect of a complainant to provide or refer the complainant for further services.. including the South African Police Services, (3) The directives referred to in this section must ensure that adequate disciplinary steps are taken against a functionary or person who fails to comply with any directive.
(4) Any directives issued in terms of subsection (1) must be submitted to Parliament before those directives take effect.’’.

Substitution of section 19 of Act 116 of 1998 25.

The following section is hereby substituted for section 19 of the principal Act: ‘‘Regulations 19.
(1) The Minister [of Justice] may make regulations regarding— (a) any form required to be prescribed in terms of this Act; [(b) any matter required to be prescribed in terms of this Act; and (c) any other matter which the Minister deems necessary or expedient to be prescribed in order to achieve the objects of this Act.
(2) Any regulation made under subsection (1)— (a) must be submitted to Parliament prior to publication thereof in the Gazette; (b) which may result in expenditure for the State, must be made in consultation with the Minister of Finance; and (c) may provide that any person who contravenes a provision thereof or fails to comply therewith shall be guilty of an offence and on conviction be liable to a ﬁne or to imprisonment for a period not exceeding one year.]
(b) ﬁnancial assistance to be provided by the State— (c) (i) (ii) to a complainant or respondent who does not have the means to pay for fees of any service in terms of this Act; and to a witness who attends any proceedings in terms of this Act; the granting of legal aid at State expense in appropriate cases in consultation with the Legal Aid South Africa to the complainant, respondent, a person with a disability, an older person or a child to assist them with an application for a protection order in terms of this Act; (d) any matter required to be prescribed in terms of this Act; and (e) any other matter which the Minister deems necessary or expedient to prescribed in order to achieve the objects of this Act.
(2) Any regulation made under subsection (1)— (a) must be submitted to Parliament prior to publication thereof in the Gazette; (b) which may result in expenditure for the State, must be made in consultation with the Cabinet member responsible for ﬁnance; and (c) may provide that any person who contravenes a provision thereof or fails to comply therewith is guilty of an offence and on conviction is liable to a ﬁne or to imprisonment for a period not exceeding one year.’’.
Insertion of section 19A in Act 116 of 1998 26.

The following section is hereby inserted after section 19 of the principal Act: ‘‘Period within which directives and regulations must be submitted to Parliament 19A.

(1) (a) The directives referred to in sections 18A and 18B must be submitted to Parliament within 12 months from the date of assent of the Domestic Violence Amendment Act, 2021.
(b) A Director-General who is in terms of section 18A or 18B, responsible for the issuing of directives must, in the event of a failure to submit the directives to Parliament, within 12 months from the date of assent of the Domestic Violence Amendment Act, 2021, report such 50 55 31 failure and the reasons for such failure to Parliament before the end of the month following upon the month during which the 12-month period expires and thereafter at such intervals as Parliament may determine.
(c) The failure to submit the directives referred to in paragraph (a) to Parliament within 12 months from the date of assent of the Domestic Violence Amendment Act, 2021, does not affect the validity of any such directives that are submitted to Parliament after the expiration of the said period and thereafter issued.
(2) (a) The Minister must, in terms of section 19(2) submit regulations that are necessary or required to be made for the proper implementation and administration of this Act to Parliament within 12 months from the date of assent of the Domestic Violence Amendment Act, 2021.
(b) The Minister must, in the event of a failure to submit the regulations referred to in paragraph (a) to Parliament, within 12 months from the date of assent of the Domestic Violence Amendment Act, 2021, report such failure and the reasons for such failure to Parliament before the end of the month following upon the month during which the 12-month period expires and thereafter at such intervals as Parliament may determine.
(c) The failure to submit the regulations referred to in paragraph (a) to Parliament within 12 months from the date of assent of the Domestic Violence Amendment Act, 2021, does not affect the validity of any such regulations that are submitted to Parliament after the expiration of the said period and made thereafter.’’.

Substitution of section 20 of Act 116 of 1998 27.

The following section is hereby substituted for section 20 of the principal Act: ‘‘Amendment of laws 20.
The laws mentioned in the Schedule are amended to the extent indicated in the third column of the Schedule.’’.

Short title and commencement 28.

This Act is called the Domestic Violence Amendment Act, 2021, and comes into operation on a date ﬁxed by the President by proclamation in the Gazette.

5 10 15 20 25 30 32 SCHEDULE LAWS AMENDED (Section 20) Short title Extent of repeal or amendment No.

and year of law Act No.

51 of 1977 Criminal Procedure Act, 1977 Act No.


60 of 2000 Firearms Control Act, 2000 Section 40 of the Criminal Procedure Act, 1977, is hereby amended by the substitution in subsection (1) for paragraph (q) of the following paragraph: ‘‘(q) who is reasonably suspected of having committed an act of domestic violence, as contemplated in section 1 of the Domestic Violence Act, 1998 and which consti- tutes an offence in [respect of which violence is an element] terms of any law.’’.
Schedule 2 to the Firearms Control Act, 2000, is hereby amended by the substitution for paragraph (e) of Item 7 of the following paragraph: ‘‘(e) in terms of [section 18(1)(a) of] the Domestic Violence Act, 1998 (Act No.

116 of 1998) or the Protection from Harassment Act, 2011 (Act No.

17 of 2011).’’.

Act No.


17 of 2011 Protection from Harassment Act, 2011 The Protection from Harassment Act, 2011, is hereby amended by— (a) the substitution for subsection (2) of section 1 of the follow- ing subsection: (b) ‘‘(2) This Act does not prevent a person who may apply for relief against harassment [or stalking] in terms of the Domestic Violence Act, 1998 (Act No.
116 of 1998), from applying for relief in terms of this Act.’’; and the substitution in subsection (5) of section 10 for paragraph (a) of the following paragraph: ‘‘(a) Provided that the complainant is not in possession of or not in the process of applying for a protection order against harassment [or stalking] as provided for in the Do- mestic Violence Act, 1998 (Act No.
116 of 1998), the court may not refuse— (i) to issue a protection order; or (ii) to impose any condition or make any order, which it is competent to impose or make under this section, merely on the grounds that other legal remedies are avail- able to the complainant.’’.
The Superior Courts Act, 2013, is hereby amended by the substi- tution for subsection (1) of section 47 of the following subsec- tion: ‘‘(1) [Notwithstanding any other law] Except for an application made in terms of the Domestic Violence Act, 1998 (Act No.
116 of 1998), no civil proceedings by way of summons or notice of motion may be instituted against any judge of a Superior Court, and no subpoena in respect of civil proceedings may be served on any judge of a Superior Court, except with the consent of the head of that court or, in the case of a head of court or the Chief Justice, with the consent of the Chief Justice or the President of the Supreme Court of Appeal, as the case may be.’’.

Act No.
Act No.

10 of 2013 Superior Courts Act, 2013 33 MEMORANDUM ON THE OBJECTS OF THE DOMESTIC VIOLENCE AMENDMENT BILL, 2020 1.

PURPOSE OF BILL The Bill seeks to amend the provisions of the Domestic Violence Act, 1998 (Act No.

116 of 1998) (the Act), in order to address practical challenges, gaps and anomalies which have manifested themselves since the Act was put into operation in 1999.
The amendments also seek to enhance the application of the Act in order to protect victims of gender-based violence and other vulnerable persons against domestic violence.

Numerous amendments discussed below aim to align the Act with the Protection from Harassment Act, 2011 (Act No.

17 of 2011) (the Harassment Act, 2011).

The Bill further seeks to remove the use of binary language (i.e.

he or she, him or her etc.).

2.


OBJECTS OF BILL 2.1 Clause 1 of the Bill inserts an ‘‘Arrangement of Sections’’ in the Act.

2.2 Clause 2 of the Bill deletes, amends and inserts various deﬁnitions in section 1 of the Act to further facilitate the interpretation of the Act, and clause 3 amends section 2 by removing the use of binary language in paragraph (c).

2.3 Clause 4 of the Bill inserts sections 2A and 2B in the Act.
2.3.1 The proposed section 2A, imposes the following obligations on functionaries (who are deﬁned as a medical practitioner, health service provider, social worker, official in the employ of a public health establishment, educator or a care-giver or any other person or entity designated in terms of section 2A(1), to deal in the following manner with the victims of domestic violence: (a) Where a functionary becomes aware of the fact, or on reasonable grounds believes or suspects, that a child, a person with a disability or an older person is a complainant as contemplated in section 1, the functionary—  must report the reasons for such knowledge, belief or suspicion to a social worker and the South African Police Service; and  may, after conducting, and evaluation of, a risk assessment as contemplated in section 18B, provide or refer the complainant for further services as contemplated in section 18B.
(b) Where a functionary becomes aware of the fact that and adult person, other than an adult person with a disability or an older the person, functionary—  must report the reasons for such knowledge to a social worker is a complainant as contemplated in section 1, or the South African Police Service;  must if it is reasonably possible to do so — provide the complainant with a prescribed list containing the names and contact particulars of accessible shelters and public health establishments; — hand a notice containing information as prescribed to the complainant in the official language of the complainant’s choice; and — explain to the complainant the content of such notice, including the remedies at the complainant’s disposal in to lodge a criminal terms of this Act and the right complaint, if applicable; and  may, after conducting, and evaluation of, a risk assessment as contemplated in section 18B, provide or refer the complainant for further services as may be contemplated in section 18B.
2.3.2 The proposed section 2B imposes an obligation on persons, other than a functionary contemplated in section 2A, to report their knowledge or a reasonable belief or suspicion that an act of domestic violence has 34 been committed against a person to a social worker or the South African Police Service.
2.3.3 Sections 2A and 2B further provide that a functionary or person— (a) who makes a report, as contemplated in those sections, in good faith, is not liable to civil, criminal or disciplinary action on the basis of the report, despite any law, policy or code of conduct prohibiting the disclosure of personal information; and is entitled to have their identity kept conﬁdential, unless the interests of justice require otherwise.
(b) 2.4 Clause 5 of the Bill amends section 3, which provides that a peace officer may at the scene of an incident of domestic violence arrest a person without a for an offence containing an element of violence against a warrant complainant.
In terms of the proposed amendments to the section: (a) A discretion is afforded to a peace officer to arrest any person at the scene of an incident of domestic violence, who such peace officer reasonably suspects of having committed—  an act of domestic violence which constitutes an offence in terms of any law, against any person who is in a domestic relationship with such person; or  an offence referred to in section 17(1)(a) (which criminalises a contravention of any prohibition, condition, obligation or order of a protection order).
(b) A peace officer must arrest a person who is reasonably suspected of having committed an act of domestic violence where physical violence is involved.
(c) A peace officer contemplated in paragraphs (a) and (b) above, who is not a member of the South African Police Service, must—  where necessary, make arrangements for the complainant to obtain medical attention; and  where a protection order has not been issued against the person who has been arrested for committing an act of domestic violence, or where there is no pending application for a protection order against that person— — provide the complainant with a prescribed list containing the names and contact particulars of accessible shelters and public health establishments; — if it is reasonably possible to do so, hand a notice containing in the official information as prescribed to the complainant language of the complainant’s choice; and — if it is reasonably possible to do so, explain to the complainant the contents of such notice, including the remedies at the complain- ant’s disposal in terms of the Act, and the right to lodge a criminal complaint, if applicable; and  provide such further assistance as contemplated in section 18B.
2.5 In terms of section 26 of the Criminal Procedure Act, 1977 (Act No.

51 of 1977), a police official who in the investigation of an alleged offence reasonably suspects that a person who may furnish information with reference to any such offence, is on any premises, such police official may without a warrant enter such premises for the purpose of interrogating such a person and obtaining a statement from such a person.
However, section 26 also provides that such a police official is prohibited from entering any private dwelling without the consent of the occupier thereof.

This restriction severely hampers the powers of the South African Police Service to effectively protect a complainant, since they cannot enter the shared residence without the consent of the occupier, who may be the person who has committed an act of domestic violence against the complainant who is in need of life-saving treatment.
Clause 6 inserts a new section 3A in the Act, which provides: (a) That, a member of the South African Police Service, who— 35  receives a report that an offence containing an element of physical violence has allegedly been committed during an incident of domestic violence; and  reasonably suspects that a person who may furnish information regarding that alleged offence is in any private dwelling, may, notwithstanding section 26 of the Criminal Procedure Act, 1977, without a warrant, enter those premises for the purposes of interrogating that person and obtaining a statement from them.
(b) The member—  must before entering those premises, audibly demand admission to the dwelling and notify the purpose for which the member seeks to enter that dwelling; and  may, if an occupier of the dwelling does not provide admission to the dwelling, use such force as may be reasonably necessary to overcome any resistance against entry to the dwelling, including the breaking of any door or window of that dwelling.
2.6 Clause 7 effects the following amendments to section 4, which deals with applications for protection orders: (a) In addition to making an application for a protection order in person, such an application may also be submitted to the clerk of the court remotely by way of submission (subsection (1)(b)(i)(bb)); secure online a (c) (d) (b) a person who makes an application on behalf of an adult complainant, who is not represented by a legal representative must also be informed of the relief available in terms of the Act and the right to also lodge a criminal complaint against the respondent, if applicable (subsection (2)); technical amendments are effected to subsection (3), to clarify the category of persons who are entitled to apply for protection orders on behalf of adult persons; the reference to ‘‘minor’’ is substituted for the reference of ‘‘child’’ (subsection (4)); technical amendments are effected to provide that an application for a protection order may be brought outside ordinary court hours if the court has a reasonable belief that the complainant is suffering or may suffer harm if the application is not dealt with immediately and that such an application must immediately be submitted to the court by the clerk of the court (subsections (5) and (6)); all applications for protection orders must be uploaded onto the integrated electronic repository, established in terms of section 6A (subsection (7)(a)).
(e) (f) 2.7 Clause 8 inserts a new section 4A dealing with the issuing of a domestic violence safety monitoring notice.

The provision introduces measures to ensure the safety and wellbeing of the complainant when or after applying for a protection order in instances where the complainant and the respondent share a residence.
It provides that if the court is satisﬁed from information on oath or affirmation as set out in the application and such additional evidence there are reasonable grounds for that contemplated in subsection (5), believing that the complainant and the respondent share a joint residence, and there are reasonable grounds to suspect that the respondent poses a threat to the complainant’s personal safety, it may issue a domestic violence safety monitoring notice in the prescribed form.
The notice directs the station commander of the police station servicing the area where the complainant resides to assign a police official to regularly contact the complainant and to regularly visit residence to see and communicate with the complainant privately.
the joint 2.8 Clause 9 effects the following amendments to section 5 of the Act, which deals with the consideration of applications for, and the issuing of, interim protection orders by the court: 36 2.8.1 2.8.2 In terms of section 5(1A) a court may, when considering an application for a protection order, in the circumstances as prescribed in the Mediation in Certain Divorce Matters Act, 1987 (Act No.
24 of 1987), cause an investigation to be carried out by a Family Advocate contemplated in the Mediation in Certain Divorce Matters Act, 1987, where available, with regard to the welfare of any minor or dependent child affected by the proceedings in question.
The subsection is amended by the removal of the unnecessary double reference to the Mediation Act, and to provide that a court may also, when considering an application for a protection order, cause an investigation to be carried out as contemplated in section 47 of the Children’s Act, 2005 (Act No.

30 of 2005).
30 of 2005).

Section 47 of the Children’s Act, 2005, provides that, if it appears to any court in the course of proceedings that a child involved in or affected by those proceedings is in need of care and protection as is contemplated in section 150, the court must order that the question whether the child is in need of care and protection be referred to a designated social worker for an investigation contem- plated in section 155(2) of that Act.
In terms of section 5(3), upon the issuing of an interim protection order by the court, the clerk of the court must immediately notify the complainant and the court must direct that copies of the application, affidavits, record of any evidence and the interim protection order be served on the respondent to show cause on the return date speciﬁed in the order why the interim protection order, should not be made ﬁnal.
This provision is amended to provide that those documents must be served on the respondent in the prescribed manner, by the clerk of the court, sheriff or peace officer identiﬁed by the court either by hand or electronically.

Similar amendments are effected to subsections (4) and (7) to provide for electronic service of documents.

2.8.3 In terms of section 5(6), an interim protection order has no force and effect until it has been served on the respondent.
The provision is amended to provide that an interim protection order is of force and effect from the time the existence and contents thereof have been served on the respondent.

2.9 Clause 10 inserts new sections 5A, 5B and 5C in the Act.
2.9.1 Section 5A provides that a person may be subpoenaed as a witness at the court proceedings or to provide any book, document, object or thing, if the evidence of that person or a book, document, object or thing appears to the court to be essential to the just decision of the case.
A person so subpoenaed must attend the proceedings and remain in attendance at the proceedings, and a person who is in attendance at any proceedings under this Act, though not subpoenaed as a witness, and who is warned by the court to remain in attendance at the proceedings, must remain in attendance at the proceedings, unless excused by the court.
It is an offence for a person so subpoenaed to fail to attend or remain in attendance, or to fail to appear at the place and on the date and at the time to which the proceedings in question may be adjourned, or to fail to remain in attendance at those proceedings as so adjourned, or to fail to produce any book, document, object or thing speciﬁed in the subpoena.
2.9.2 Section 5B imposes obligations on electronic communications service providers to provide assistance to a court in respect of electronic communication which were used to commit an act of domestic violence.
The section provides for the following: (a) Where an application for a protection order is made in terms of section 4 and it is necessary to determine whether an electronic communication, which was used to commit an act of domestic violence, was disclosed by the respondent, the court may adjourn 37 the proceedings to any time and date on the terms and conditions which the court deems appropriate and issue a direction in the prescribed form, directing an electronic communications service provider, that is believed to be able to furnish such particulars, to furnish the court in the prescribed manner by means of an affidavit in the prescribed form with—  the electronic communications identity number from where the electronic communication originated and particulars of the person to whom the electronic communications identity number has been assigned;  any information which indicates that the electronic communi- cation was or was not sent from the electronic communications identity number of the person to the electronic communica- tions identity number of the complainant;  any information that is available to an electronic communica- tions service provider that may be of assistance to the court to identify the person who disclosed the electronic communica- tion or the electronic communications service provider, that provides a service to that person;  any information that is available to an electronic communica- tions service provider which may be of assistance to the court to identify the electronic communications service provider whose service is used to host or was or is used to disclose the electronic communication in question; or  an assessment whether or not the electronic communications service provider is in a position to remove the electronic communication or a link to the electronic communication or to disable access to such electronic communication or a link to such electronic communication.
(b) A direction contemplated in paragraph (a) must be served on the electronic communications service provider in the prescribed manner.

However, if the court is satisﬁed that the direction cannot be served in the prescribed manner, the court may make an order allowing service to be effected in the form and manner speciﬁed in that order.
(c) The information referred to in paragraph (a) must be provided to the court within ﬁve ordinary court days from the time that the direction is served on an electronic communications service provider.
An electronic communications service provider may, however, apply to the court for an extension of the period of ﬁve ordinary court days for a further period of ﬁve ordinary court days on the grounds that the information cannot be provided timeously or the cancellation of the direction on the grounds that—  it does not provide an electronic communications service to the complainant or the respondent;  the requested information is not available in the records of the electronic communications service provider; or  its service is not used to host or was or is not used to disclose the electronic communication in question.
(d) The court may, on receipt of an affidavit from an electronic communications service provider which contains the information referred to in paragraph (a), consider the issuing of an interim protection order in terms of section 5(2) against the respondent on the date to which the proceedings have been adjourned.

The information furnished to the court in terms of paragraph (a) forms part of the evidence that a court may consider in terms of section 5(1).
If the court issues an interim protection order, the court must at the same time, in the prescribed form and manner, issue an order to the electronic communications service provider whose elec- tronic communications service is used to host or disclose the electronic communication whereby an act of domestic violence (e) 38 was committed, to immediately remove or disable access to the electronic communication.
An electronic communications ser- vice provider who is ordered to remove or disable access an electronic communication in terms of paragraph (a), may, within 14 days after service of the order, apply to the court in the prescribed manner by means of an affidavit in a prescribed form for the setting aside or amendment of the order referred to in paragraph (a).
(f) The Director-General: Justice and Constitutional Development must compile and maintain a list of electronic communications service providers that can provide the courts with the information referred to in paragraph (a), which must be made available to all courts.
(g) The Cabinet member responsible for the administration of justice must, by notice in the Gazette, also prescribe reasonable tariffs of compensation payable to electronic communications service providers for, among others, providing the information referred to in paragraph (a) and for removing or disabling access to the electronic communication which was used to commit an act of domestic violence as contemplated in paragraph (e).
In terms of section 5C, a court must before it issues a protection order referred to in section 5(2) or 6(1), establish whether there is any other order against the complainant or respondent, which was previously issued by a court and may have a bearing on the application before such court.
Where any such order is in place, the court must record such an order on the court ﬁle and where it issues a protection order, or impose any condition or make any order which it is competent to impose or make under section 7, ensure that the protection order does not contradict such an existing order.
Where a court is satisﬁed that urgent relief against an act of domestic violence is necessary, it may notwithstanding any other order, issue a protection order or impose any condition or make any order which it is competent to impose or make under section 7 and order that they remain in force for a limited period as it may determine in order to afford the complainant an opportunity to apply for the amendment, variation or setting aside of such an order.
2.9.3 2.10 Clause 11 effects the following amendments to section 6 of the Act, which deals with the issuing of a ﬁnal protection order: (a) The word ‘‘ﬁnal’’ is inserted in the heading and various subsections, (b) before the word ‘‘protection order’’; subsections (1A), (2A) and (2B) are inserted in the provision to further regulate instances where the complainant or the respondent or both parties do not appear on the return date to which the proceedings have been adjourned to for considering the issuing of a ﬁnal protection order; and (c) provision is further made that a copy of the warrant, together with the ﬁnal protection order, must be captured in the integrated electronic repository of protection orders to ensure that such documents are accessible within the criminal justice system.
2.11 Clause 12 inserts a new section 6A in the Act, which provides for the establishment of an integrated electronic repository for domestic violence protection orders and further regulates access thereto.

The aim of this facility is to facilitate accessibility of orders by functionaries in the criminal justice system.
2.12 Clause 13 effects the following amendments to section 7, which provides for the court’s powers in respect of protection orders: (a) Subsection (1) is amended to provide that a court may by means of a protection order prohibit a respondent from also—  attempting to commit an act of domestic violence (subsection (1)(a)); 39  entering the complainant s or a related person s workplace or place of studies (subsection (1)(f)); and  distributing certain electronic communications (subsection (1)(h)).
(b) Subsection (2) provides that a court may impose additional conditions to protect the complainant, such as seizing any weapon and that a peace officer must accompany the complainant to collect personal property.

This subsection is amended to provide that the court may also recommend to the complainant to approach a relevant police station to investigate the matter with a view to the possible institution of a criminal prosecution against the respondent.
(c) Subsection (4A) is inserted in the section to enable the court to conduct an enquiry in terms of section 35 of the Prevention and Treatment for Substance Abuse Act, 2008 (Act No.

70 of 2008), and in deserving cases, to commit the respondent to a treatment centre for substance abuse.
(d) Subsection (5) is amended by the addition of paragraph (c), which provides that, where the complainant or related person is a child, the complainant’s or related person’s physical, home, study and work addresses must not be disclosed until a children’s court inquiry into the matter has been held.
2.13 Section 8 deals with the issuing of a warrant of arrest upon the issuing of a protection order and the arrest of a respondent who contravenes any prohibition, condition, obligation or order imposed in terms of section 7.

Clause 14 effects the following amendments to section 8: (a) A technical amendment is effected to subsection (1) to also include a reference to an interim protection order.
(b) Where a respondent contravenes a protection order, the complainant may hand the warrant of arrest together with an affidavit in the prescribed form, wherein it is stated that the respondent has contravened any prohibition, condition, obligation or order contained in a protection order, to any member of the South African Police Service.
Subsection (4)(b) empowers a police official to ‘‘forthwith’’ arrest a respondent on the strength of a warrant issued under this section if it appears to the police official that there are reasonable grounds to suspect that the complainant may suffer ‘‘imminent’’ harm as a result of the breach of the protection order by the respondent.

The words ‘‘forthwith’’ and ‘‘imminent’’ in the context of subsections (4) and (5), gave rise to various interpretation problems.
To address these interpretation issues, the word ‘‘forthwith’’ is substituted with the word ‘‘immediately’’ and the word ‘‘imminent’’ is deleted wherever it appears in subsections (4) and (5).
(c) Subsection (5), sets out the requirements that a police official must take into account when determining whether a complainant may suffer harm, and includes the risk to the safety, health or well-being of the complainant, the seriousness of the conduct and the length of time since the alleged breach of the protection order.
The subsection is amended to provide that the police officer must also consider—  the risk to the safety, health or wellbeing of a related person; and  the nature and extent of the harm previously suffered in the domestic relationship by the complainant or a related person.

2.14 Section 9 of the Act deals with the seizure of arms and dangerous weapons.
Clause 15 effects the following amendments to this section: (a) The distinction between ‘‘arms’’ and ‘‘dangerous weapons‘‘ is done away with and conjunctively dealt with under the deﬁnition of ‘‘weapon’’ which is deﬁned in section 1 as any airgun, ammunition, imitation ﬁrearm, muzzle loading ﬁrearm, ﬁrearm or handgun as deﬁned in section 1 of the Firearms Control Act, 2000 (Act No.
60 of 2000) or any other object which is likely to inﬂict grievous bodily harm or a dangerous wound, if it were used to commit an assault.

The deﬁnitions of ‘‘dangerous weapon’’ and ‘‘arm’’, are consequentially deleted in section 1.
40 (b) Subsection (1) is amended to provide that a court may order a member of the South African Police Service to seize any weapon, regardless of the requirements of the respondent’s employment to possess such weapon, if the respondent has threatened or expressed the intention to kill or injure themselves, any person in the domestic relationship or a related person, or that possession of such weapon is not in the best interests of the respondent or any other person in a domestic relationship, as a result of the respondent’s state of mind or mental condition, inclination to violence or use of or dependence on intoxicating liquor or drugs.
(c) Subsection (2) is amended by the substitution for the reference to the repealed Arms and Ammunition Act, 1969 (Act No.

75 of 1969) of the Firearms Control Act, 2000, and to provide that a copy of the record of evidence relating the proceedings for an application for an interim protection order must now be submitted to the relevant station commander for consideration in terms of section 102 of the Firearms Control Act, 2000, to determine whether the person is unﬁt to possess a ﬁrearm.
(d) Subsection (3) is amended to provide that the court may order that the weapon be forfeited to the State, if the value of such a weapon seized is below an amount determined by the Minister in the Gazette.

(e) Subsection (4) is inserted to provide that when a ﬁnal protection order has been issued against the respondent, the clerk of the court must, in the prescribed manner, inform the relevant station commander and National Commissioner of the South African Police Service thereof.
The relevant station commander must, on receipt of the information determine whether the respondent holds a licence, permit, competency certiﬁcate or other authorisation in terms of the Firearms Control Act, 2000, for any ﬁrearm, determine whether the person is unﬁt to possess a ﬁrearm and inform the National Commissioner of the South African Police Service of the station commander’s decision regarding the ﬁtness of that person to possess a ﬁrearm.
2.15 Clause 16 effects the following amendments to section 10, which regulates the variation or setting aside of a protection order: (a) Subsection (1) provides that a complainant or a respondent may, upon written notice to the other party and the court concerned, apply for the variation or setting aside of a protection order.
This subsection is amended to provide that a party must, if they oppose the application, within 10 days of being served with a notice of application, give written notice to the other party and the court setting out grounds and facts on which the application is opposed.
In terms of subsection (2), the court may, if it is satisﬁed that good cause has been shown for the variation or setting aside of a protection order, and where the application is made by a complainant, that the application issue an order to this effect.
The is made freely and voluntarily, subsection is amended to provide that the court must further be satisﬁed that the circumstances have changed materially since the granting of the original protection order and that proper service has been effected on the respondent before such a protection order may be varied or set aside.

(b) 2.16 Clause 17 effects technical amendments to section 11.

2.17 Section 12 regulates the jurisdiction of courts in respect of applications for domestic violence protection orders.
Clause 18 amends subsections (1) and (2) to clarify that a court within the area in which the complainant or respondent permanently or temporarily resides, studies, carries on business or is employed, has jurisdiction to grant a protection order.

41 2.18 Section 13 of the Act deals with service of documents for purposes of the Act.
Clause 19 amends 13(1), to provide that— (a) the service of documents is to be effected immediately on the person affected by it at their residence or place of business, employment or study in the prescribed manner by the clerk of the court, the sheriff or a peace officer, or as the court may direct; (b) where the complainant and respondent share the same residence, the service of documents referred to in sections 5(3)(a) or (4) and 6(5)(a), must be effected by hand on the respondent personally, and the documents referred to in sections 5(7)(c) and 6(5)(b) must be effected by hand on the complainant personally; and if is satisﬁed that service of any document cannot be effected in the prescribed manner, the court may make an order allowing service to be effected in the form or manner speciﬁed in that order.
(c) 2.19 Clause 20 effects the following amendments to section 15 of the Act, which deals with cost orders: (a) The heading to section 15 is substituted for the heading ‘‘Orders as to (b) (c) costs of service and directions’’; the current provision is renumbered as subsection (1) and is amended to provide that the court may, having regard to the conduct of the parties as far as it may be relevant, make an order as to costs against any party if it is satisﬁed that such party has acted frivolously, vexatiously or unreasonably; a new subsection (2) is inserted to provide that notwithstanding subsection (1), the court must make an order as to costs against the respondent in respect of the service of any process or documents, the obtaining of information contemplated in section 5B(1)(b), the removal of, or disabling of access to an electronic communication contemplated in section 5B(6), or for providing the information referred to in section 5B(7).
2.20 Clause 21 amends section 16 by substituting the reference ‘‘Supreme Court Act, 1959’’ with that of ‘‘Superior Courts Act, 2013’’.

2.21 Clause 22 amends section 17 of the Act, to further provide for offences and penalties.
2.22 Clause 23 amends section 18(1) to provide that a prosecutor may not refuse to institute a prosecution or withdraw a charge, in respect of a contravention of section 17(1)(a) or in respect of any offence against a person in a domestic relationship—  involving the inﬂiction of grievous bodily harm or a dangerous wound against the complainant or a related person; or  where the complainant or a related person is threatened with a weapon, unless that prosecutor is authorised thereto by the relevant Director of Public Prosecutions.
2.23 Clause 24 inserts sections 18A and 18B in the Act.

2.23.1 Section 18A empowers the Director-General: Justice and Constitu- tional Development to issue directives with which clerks of the court must comply in the execution of their functions in terms of the Act.

These directives must ensure that adequate disciplinary steps will be taken against a clerk of the court who fails to comply with those directives.
42 2.23.2 Section 18B provides for the issuing of directives by the Directors- General: Health, Social Development, Basic Education, Higher Education and Training as well as Communications and Digital Technologies to regulate matters which are reasonably necessary or expedient to be provided for and which are to be followed by functionaries and other relevant persons when dealing with incidents of domestic violence, in order to achieve the objects of the Act.
These directives must, inter alia, provide for—  services to be provided to a complainant who is a child, a person with a disability or an older person;  the manner in which a functionary must deal with a complainant who is a child, a person with a disability or an older person, in order to protect them against further acts of domestic violence;  services to be provided to a complainant who is an adult person;  a public education and communication initiative to educate the public on the provisions of the Act, the obligations of the relevant functionaries including the South African Police Services in respect of domestic violence incidents and institutions where complaints may be lodged against a functionary or a member of the South African Police Service;  the designation of accredited shelters;  standards and minimum conditions for the provision of services in accredited shelters;  the manner in which a risk assessment must be conducted in respect of a complainant to provide or refer the complainant for further services.
2.23.3 These directives must ensure that adequate disciplinary steps will be taken against a functionary or person who fails to comply with those directives.

2.24 Section 19 of the Act provides for the making of regulations by the Minister.
Clause 25 amends section 19 to provide that the Minister may make regulations to provide, among others, for ﬁnancial assistance to be provided by the State to, either a complainant or a respondent who does not have the means to pay for service fees and the granting of legal aid at the expense of the State in appropriate cases.

Where the regulations may result in expenditure for the State, it must be made in consultation with the Cabinet member responsible for ﬁnance.
Any regulations made in terms of section 19, must be submitted to Parliament prior to publication thereof in the Gazette.

2.24.Clause 26 inserts a new section 19A in the Act.

This section requires the directives and the regulations be submitted to Parliament with 12 months from the date of assent to the Bill.

Failure to submit the directives or the regulations timeously and the reasons therefore must be reported to Parliament the month following upon the month during which the 12 month period expires.
2.25 Clause 27 substitutes section 20, to provide for the amendment of other laws which deal with aspects relevant to domestic violence as set out in the Schedule to the Bill.
In the Schedule to the Bill: (a) Section 40(1) of the Criminal Procedure Act, 1977, is amended to provide that a peace officer who reasonably suspects a person of having committed an act of domestic violence as contemplated in section 1 of the Domestic Violence Act, 1998, and which constitutes an offence in terms of any law may arrest such person without a warrant.
(b) The Firearms Control Act, 2000, is amended to include the offence in terms of section 17(1)(a) of the Domestic Violence Act, 1998, in item 7(e) of Schedule 2 of that Act.

Schedule 2 is applicable to section 103 of that Act which deals with the powers of a court to declare a person to be unﬁt to possess a ﬁrearm.

43 (c) The Protection from Harassment Act, 2011, is amended by the deletion, in sections 1(2) and 10(5)(a), of the word ‘‘stalking’’.
(d) Section 47 of the Superior Courts Act, 2013, is amended to provide that applications in terms of the Domestic Violence Act, 1998, may be made against a judge without the required consent by the head of a Superior Court, or in the case of a head of court or the Chief Justice, with the consent of the Chief Justice or the President of the Supreme Court of Appeal, as the case may be.

2.26 Clause 28 deals with the short title and commencement of the Act.

3.
3.

BODIES, DEPARTMENTS AND PARTIES CONSULTED A workshop for experts and relevant departments was held on 10 February 2020 to scrutinise a ﬁrst draft of the Bill.

Thereafter the augmented Bill was subjected to a consultation process at the end of February 2020.

Comments were collated and changes were effected to the Bill to the extent needed.

The JCPS Development Committee was consulted on the Bill on 25 June 2020 and gave its approval for the further processing of the Bill.
Thereafter, on 13 and 14 July 2020 respectively, the Bill was presented to and received the support of the Justice, Crime Prevention and Security DG’s cluster and the Social Protection, Community and Human Development Technical Working Group Cluster for the further processing of the Bill.

The SPCHD DG’s cluster gave its support of the Bill on 5 August 2020, conﬁrming its TWG’s support given on 14 July 2020.

4.
4.

FINANCIAL IMPLICATIONS 4.1 Although section 6A which establishes an integrated electronic repository will have ﬁnancial implications for the State, the integrated electronic repository will form part of the upgrading of the integrated criminal justice system.

The ﬁnancial implications associated therewith will form part of the existing budget allocated for this upgrade.

4.2 Clause 10 will have ﬁnancial implications for the State.
Clause 5B(10)(c), among others, requires the State to pay the electronic communications service providers the costs for providing the contact information of respondents in certain circumstances.

It is not possible to quantify the number of matters in which the State will have to bear these costs.

Clause 8 does, however, contain a provision in terms of which the court can make an order, directing the respondent to refund the State for the costs so incurred.
4.3 Clause 24 which provides for the issuing of directives for clerks of the court and for relevant officials in the Departments of Health, Social Development, Basic Education, Higher Education and Training and Communications and Digital Technologies will necessitate training.

It is anticipated that this training will form part of existing departmental budgets allocated for training.
4.4 Clause 25 empowers the Minister to make certain regulations, among others, regarding ﬁnancial assistance to be provided for by the State to a complainant or respondent who does not have the means to pay for fees of any service of process or documents in terms of the Bill or to a witness who attends any proceedings in terms of the Bill.
Regulations may also be made regarding the granting of legal aid at State expense in appropriate cases in consultation with Legal Aid South Africa to the complainant, respondent, a person with a disability, an older person or a child in order to assist them with an application for a protection order.

Again, it is not possible to quantify the number of matters in which the State will have to bear these costs.
Any regulation to be made which may result in expenditure for the State, must be made in consultation with the Cabinet member responsible for ﬁnance.

These ﬁnancial implications will be considered when regulations are prepared.

44 5.

IMPLICATIONS FOR PROVINCES There are no implications for the provinces.

6.
6.

PARLIAMENTARY PROCEDURE 6.1 The State Law Advisers and the Department of Justice and Constitutional Development are of the opinion that the Bill should be dealt with in accordance with the procedure set out in section 75 of the Constitution, since it contains no provisions to which the procedure set out in section 74 or 76 of the Constitution applies.
6.2 The Constitution distinguishes between four categories of Bills as follows: Bills amending the Constitution (section 74); Ordinary Bills not affecting provinces (section 75); Ordinary Bills affecting provinces (section 76); and Money Bills (section 77).

A Bill must be correctly classiﬁed or tagged; otherwise it would be constitutionally invalid.
6.3 The Bill has been considered against the provisions of the Constitution relating to the tagging of Bills, and against the functional areas listed in Schedule 41 to the Constitution.

6.4 The crux of tagging has been explained by the courts, especially the Constitutional Court in the case of Tongoane and Others v Minister of Agriculture and Land Affairs and Others 2010 (8) BCLR 741 (CC).
The Court, in its judgment, stated as follows: ‘‘[58] What matters for the purpose of tagging is not the substance or the true purpose and effect of the Bill, rather, what matters is whether the provisions of the Bill ‘‘in substantial measure fall within a functional area listed in schedule 4’’.

This statement refers to the test to be adopted when tagging Bills.
This test for classiﬁcation or tagging is different from that used by this court to characterise a Bill in order to determine legislative competence.

This ‘‘involves the determination of the subject matter or the substance of the legislation, its essence, or true purpose and effect, that is, what the [legislation] is about.

(footnote omitted) [60] The test for tagging must be informed by its purpose.
Tagging is not concerned with determining the sphere of government that has the competence to legislate on a matter.

Nor is the process concerned with preventing interference in the legislative competence of another sphere of government.

The process is concerned with the question of how the Bill should be considered by the provinces and in the NCOP, and how a Bill must be considered by the provincial legislatures depends on whether it affects the provinces.
The more it affects the interests, concerns and capacities of the provinces, the more say the provinces should have on its content.’’.

6.5 In light of what the Constitutional Court stated in the abovementioned case, the test essentially entails that ‘‘any Bill whose provisions in substantial measure’’ affects the provinces must be classiﬁed to follow the section 76 procedure.
6.6 The Bill seeks to amend provisions of the Domestic Violence Act, 1998 dealing with the issuing of a protection order (either interim or ﬁnal) against a respondent who commits an act of domestic violence against a person in a domestic relation or a related person, and the arrest of the respondent for any breach of the protection order.

In the ﬁnal analysis, it is our view that the 1.


Functional areas of concurrent national and provincial legislative competence 45 subject matter of the Bill does not fall within any of the functional areas listed in Schedule 4 or Schedule 5 to the Constitution.

Consequently, we are of the opinion that this Bill is an ordinary Bill not affecting provinces and that it must be dealt with in accordance with the procedure set out in section 75 of the Constitution.

7.
7.

REFERRAL TO NATIONAL HOUSE OF TRADITIONAL LEADERS The opinion is held that it is not necessary to refer this Bill to the National House of Traditional Leaders in terms of section 18(1)(a) of the Traditional Leadership and Governance Framework Act, 2003 (Act No.

41 of 2003), since it does not contain provisions pertaining to customary law or customs of traditional communities.

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